




































































































































































































































































































































































































































































































































































































Class f-j tl UL$ a 

Book_ 


GopightN 0 



COPYRIGHT DEPOSfr. 





























PRACTICE AND FORMS 


OF 

LAW AND EQUITY 


A TEXT BOOK 

FOR ALL, SCHOOLS IN WHICH STENOGRAPHY 
AND TYPEWRITING ARE TAUGHT, 

ALSO 

HELPFUL TO LAW STUDENTS 
AND BEGINNERS IN THE LEGAL PROFESSION. 


BY 


FRANCIS M. NICHOLS, 

MEMBER OE THE LUZERNE COUNTY BAR. 


1907 

THE RAEDER PRINTING COMPANY, 

WILKES-BARRE, PA. 


HP 


! £43 



Copyright, 1907, 

By Francis M. Nichols 





PREFACE. 


Chiefly, this work is intended for use in all schools in which 
stenography and typewriting are taught. The need of a work of 
this character in the curriculum of such schools for a long time has 
been realized, both by teachers and pupils. 

The service undertaken by the stenographer for the legal profes¬ 
sion, and in offices in which the clerical business of courts is trans¬ 
acted, requires knowledge and expertness in the use of this knowl¬ 
edge that cannot be obtained in a course of study not affording 
special opportunity to learn them. In this service the stenographer 
must use terms, phraseology, composition and forms to which, in 
all his preliminary education, he has never been introduced. He 
begins the few months of study and practice to fit himself for the 
occupation an absolute stranger to them. Unless this lack of edu¬ 
cation is overcome by special study and instruction he goes into the 
service of lawyers and official stations illy prepared to do> the work 
demanded of him. 

The course of study and practice presented in this book includes 
knowledge technical and practical, and full illustrations of its appli¬ 
cation. Legal terms and phrases are clearly defined, and the uses 
made of them in judicial proceedings are exhibited in a great variety 
of forms. As shown in the analysis furnished in the index, the be¬ 
ginning of the journey is in a definition of the power vested in the 
courts, and an explanation of the judicial districts of the State. 

From this point to the end, along the track, opportunity is af¬ 
forded the learner to become familiar with legal terms, as to their 
orthography, meaning and application; the machinery, in all its 
parts, through which the work of courts and the legal profession is 




4 


preface. 


performed; the peculiar forms used by the lawyers in their public 
and office business; the names and construction of all instruments 
perpetuated in public records, and the dockets in which these instru¬ 
ments are recorded. In brief, the aim of this book is to- give the 
student opportunity to become fitted to do> the work of a law sten¬ 
ographer in a manner satisfactory to the most exacting employer, 
and to furnish service entitling him to the highest rate of com¬ 
pensation. 

Also from this work can be gathered information valuable to 
law students and beginners in the practice of the legal profession. 
For the special benefit of the latter, in addition to those with which 
the members of the profession are familiar, forms rendered neces¬ 
sary by recent legislation are furnished. 

For several forms of praecipes, declarations and pleas in this 
book, I am indebted to the excellent work entitled “Practice in the 
Courts of Pennsylvania,” of which the late F. Carroll Brewster is 
author, and to “Dunlap’s Book of Forms,” 


Francis M. Nichols. 


TABLE OF CONTENTS. 


Abstract of Title : PAGE 

In Ejectment . 87 

Acknowledgments : 

Applications for Charters. * .200, 204, 210 

By Individual . 187 

By Corporation . 187 

Certificates of Limited Partnerships.215, 219 

Deeds . 187 

Actions in the Court of Common Pleas: 

Classes . 54 

Defendant . 54 

Ex Contractu . 54 

Ex Delicto . 54 

Kinds . 54 

Mixed . 55 

Name of Ex Contractu. 54 

Names of Ex Delicto. 54 

Names of Real. 55 

Parties to . 54 

Personal . 54 

Plaintiff . 54 

Real . 55 

Affidavits : 

In Ejectment .62-63 

In Replevin . 60 

In Scire Facias Sur Mechanic’s Lien.157-158 

OS Defence .88-89 

Appeals : 

From Award of Arbitrators.151-152 

From Judgment of Common Pleas tO' Superior Court.18-22 

From Judgment of Common Pleas to Supreme Court.24-28 






























6 


CONTENTS. 


Arbitrations : page 

Arbitrators, Hqw Chosen.149-150 

Award, Definition . 143 

Number of Arbitrators.148-149 

Praecipe .143-144 

Rules .144-147 

Service of Rules.148, 150 

Bonds: 

Accompanying Mortgage .192-193 

In Replevin .59, 66-67 

Corporations : 

Definition . 186 

Forms Used to Obtain Charters for First Class ...199, 202 

Forms Used to Obtain Charters for Second Class . 208 

How Charters are Secured for First Class .198, 201 

How Charters are Secured for Second Class . 207 

Kinds . 198 

Court Clerk : 

Duties of . 38 

Court of Common Pleas : 

Judicial Districts . 30 

Jurisdiction . 29 

Officers.33-36, 38-40 

Terms of . t . 52 

Court Stenographer : 

Appointment . 39 

Compensation . 39 

Duties . 39 

Qualification .•. 39 

Criers : 

Duties of . 39 

Declaration or Statements : 

Definition of . 78 

In Action of Assumpsit, Form of.78-81 

In Action of Dower, Form of.84-85 

In Action of Ejectment, Form of.86-87 

In Action of Partition, Form of . 85 

In Action of Replevin, Form of. 84 

In Action of Trespass, Form of . 81 

































CONTENTS. 


7 


Dockets : 

Alien .Prothonotary’s 

Arbitration .Prothonotary’s 

Auditors.Prothonotary’s 

Continuance .Prothonotary’s 

Ejectment .Prothonotary’s 

Equity.Prothonotary’s 

Execution .Prothonotary’s 

Execution .Sheriff’s . 

Judgment.Prothonotary’s 

Jurors .Sheriff’s . 

Mechanic’s Lien .Prothonotary’s 

Medical Register .Prothonotary’s 

Partition.Prothonotary’s 

Record, Alderman’s Suits.Prothonotary’s 

Sheriff’s Deed Book.Sheriff’s . 

Summons .Sheriff’s . 

Tax Lien .Prothonotary’s 

Treasurer’s Deed Book.Prothonotary’s 


Equity : 

Answer, Structure of.. 

Appearance ... 

Appendix . 

Bill, Structure of. 

Commencement of Suits.. 

Court of Equity. 

Decree . 

Demurrer .. 

Injunction . 

Notice of Filing Bill. 

Pro Confesso . 

Replication . 

Evidence : 

Documentary . 

Hearsay . 

Immaterial . 

In Chief. 

Irrelevant . 

Not Cross-examination . . 

Not Rebuttal . 

Not Surrebuttal . 

Not the Best. 

Oral . 

Reasons for Objections to 

Rebuttal . 

Surrebuttal . 


PAGE 

38 

37 


38 

36-37 


37 . 


38 


37 

77 

37 

77 

37 

37 


38 


38 


38 

77 

37 

38 


47 

45 

43 

41 

41 

40 

50 
45-46 

51 
43-44 

45 

50 


99 

99 

99 

98 

98 

99 
99 
99 
99 
97 

98-99 

100 

100 































































CONTENTS. 


Executions : page 

Attachment-Execution . 169 

Capias Ad Satisfaciendum. 169 

Definition of. 168 

Fieri Facias . 168 

Habere Facias Possessionem. 169 

Levari Facias . 169 

Praecipe for Attachment-Execution, Form of. 172 

Praecipe for Capias Ad Satisfaciendum, Form of. 171 

Praecipe for Fieri Facias, Form of. 170 

Praecipe for Habere Facias Possessionem, Form of. 171 

Praecipe for Levari Facias, Form of. 171 

Praecipe for Venditioni Exponas, Form of. 170 

Venditioni Exponas . 169 

Writs Ordered in Above Praecipes.172-183 

Forms : 

Affidavits: 

See Affidavits, First Page of Index. 

Appeals: 

Affidavit from Award of Arbitrators. 152 

Bond and Praecipe, Arbitration. 152 

Affidavit to Superior Court. 25 

Bond to Superior Court. 26 

Praecipe to Superior Court. 25 

Affidavit to Supreme Court. 19 

Bond to Supreme Court. 20 

Praecipe to Supreme Court. 19 

Arbitrations: 

Award . 143 

Praecipe . 144 

Rules . 144-145 

Declarations: 

Action of Assumpsit .78-81 

Action of Dower .84-85 

Action of Ejectment .86-87 

Action of Partition . 85 

Action of Replevin . 84 

Action of Trespass .81-83 

Equity: 

Answer . 48 

Bill of Complaint. 44 

Decree . 50 

Demurrer . 4 g 

Injunction . 54 

Injunction Bond . 50 

Replication . 50 








































CONTENTS. 


9 


Instruments in the Recorder’s Office: PAGE 

Charter'of Corporation.199-200, 202-207, 208-212 

Commission to Public Officer. 196 

Deed . 188 

Letter of Attorney. 197 

Limited Patrnership Articles.214-216. 

Mortgage . 190 

Patent from Commonwealth. 193 

Release of Executor, Etc. 195 

Release of Legacy. 194 

Miscellaneous: 

Affidavit of Defence. 88 

Affirmation of Witnesses. 98 

Announcement of Counsel, at Conclusion of Testimony. 100 

Confession of Judgment. 153 

Exceptions to Ruling on Evidence. 98 

Introduction of Addresses to the Jury. 96 

Oath or Affirmation of Jury before Submission of Evidence. 96 

Oath of Witnesses. 97 

Proclamation of Crier. 40 

Ruling of Judge on Evidence . 98 

Ruling of Judge on Legal Points.140-141 

Subpoena . 97 

Verdict, and Announcement of the Same. 102 

Pleas: 

In Action of Assumpit . 92 

In Action of Dower . 93 

In Action of Ejectment . 92 

In Action of Partition . 94 

In Action of Replevin . 93 

In Action of Trespass . 92 

Praecipes: 

Attachment-Execution . 172 

Capias Ad Satisfaciendum. 171 

Fieri Facias . 170 

Habere Facias Possessionem. 171 

In Action of Assumpsit . 56 

In Action of Dower . 60 

In Action of Ejectment . 62 

In Action of Partition . 61 

In Action of Replevin . 58 

In Action of Trespass . 58 

In Arbitrations . 144 

Judgment by Default.154-155 










































10 


CONTENTS. 


PAGE 

Judgment on Confession. 154 

Levari Facias . 171 

Scire Facias Sur Mechanic’s Lien . 157 

Scire Facias Sur Mortgage . 156 

Scire Facias Sur Municipal Lien . 158 

Scire Facias to Revive the Lien of Judgment. 156 

Trial List . 95 

Venditioni Exponas . 170 

Writs: 

Attachment-Execution . 176 

Capias Ad Satisfaciendum. 176 

Fieri Facias . 172 

Habere Facias Possessionem. 175 

Levari Facias . 174 

Scire Facias Sur Mechanic’s Lien . .•. 161 

Scire Facias Sur Mortgage . 160 

Scire Facias Sur Municipal Lien. 162 

Scire Facias to Revive Lien of Judgment. 159 

Summons, Action of Assumpsit . 64 

Summons, Action of Dower . 69 

Summons, Action of Ejectment . 71 

Summons, Action of Partition .:. 69 

Summons, Action of Replevin . 65 

Summons, Action of Trespass . 65 

Venditioni Exponas . 173 

J udge: 

Additional Law .33-35 

Associate .33-35 

Defined . 33 

Of Common Pleas . 33 

Of Orphans’ Court . 35 

Of Superior Court. 24 

Of Supreme Court. 18 

President . 33 

Judicial Districts: 

Number . 30 

Number Consisting of One County.30-31 

Number Consisting of More than One County. 30-31 

Of Common Pleas . 30-32 

Of Supreme Court .17-18 

Population of Each, Common Pleas. 30 

Judicial Power: 

Defined . 15 









































CONTENTS. 


11 


Judgments : 


page 

By Default, for Want of Affidavit of Defence. 154 

By Default, for Want of Appearance . 154 

Confession of . 153 

How Lien of is Revived and Continued. 155 

Lien of Awards. 151 

Lien of Judgments. 155 

On Awards . 143 

On Verdicts . 143 

Praecipe to Enter Judgment by Default.154-155 

Praecipe to Enter Judgment on Confession. 154 

Praecipe to Enter Issue Scire Facias to Revive Lien of. 156 

Jurisdiction : 

Common Pleas Court, Scope of.29-30 

Defined . 15 

Superior Court . 23 

Supreme Court .16-17 


Jury : 

Definition . 35 

How Selected . 96 

Number for Each Term of Court.•.. 35 

Number Required in the Trial of Each Case. 96 

Qualifications . 36 

Limited Partnership : 

Contents of Certificate.213, 216 

Forms of Certificate of Association.214, 217 

How Formed.213, 216 

Liability of Members.213, 216 

Purposes for which it may be Formed. 213 

Number and Term of Cases : 

How Ascertained . 52 

Parties to Actions : 

Defendant . 54 

Plaintiff . 54 


PeEas : 

Classes of. 90 

Definition of . 90 

Dilatory . 90 

Forms for Pleas in all Above Actions. 92-94 

General . 90 




































12 


CONTENTS. 


PAGE 

In Action of Assumpsit . 90 

In Action of Dower . 93 

In Action of Ejectment . 90 

In Action of Replevin . 93 

In Action of Trespass . 90 

Object of . 91 

Peremptory . 90 

Special . 90 

Proceedings in Actions : 

Appearance. . 88 

Affidavit of Defence. .'. 88 

Declaration or Statement. 78 

Form of Affidavit of Defence. 88 

Plea . 90 

Praecipe . 56 

Praecipe, Forms of.56-63 

Trial . 95 

Writ, Forms of.64-76 

Writ, Return of Service. 77 

Prothonotary : 

Duties'of. 36 

Powers of. 36 

Prothonotary’s Office : 

Dockets in .36-38 

Note—E ach of the foregoing dockets has an appropriate index, 
as a rule, in a separate book. 

Recorder of Deeds, Instruments Recorded in His Office: 

Certificate of Limited Partnerships.214, 217 

Charter of Corporations.199-201, 202-206 

Commission of Public Officer. 196 

Deed . 188 

Definition of Each Instrument.184-186 

Letter of Attorney. 197 

Mortgage . 190 

Patent from the Commonwealth. 193 

Release of Executors, Etc. 195 

Release of Guardian . 195 

Release of Legacy . 194 


Sheriff : 

Duties and Powers of 


77 






































CONTENTS. 


13 


Sheriff’s Office: pagf 

Dockets in . 77 

Superior Court : 

Appeals to . 24 

Forms in Appeals.25-29 

Judges . 24 

Jurisdiction, Appellate .;.23-24 

Jurisdiction, Original . 23 

Jurisdiction, Territorial . 23 

Supreme Court: 

Appeals to. 18 

Districts in which it holds Sessions.17-18 

Forms in Appeals to.19-22 

Judges . 18 

Jurisdiction, Appellate .16-17 

Jurisdiction, Original . 16 

Jurisdiction, Territorial . 16 

Terms of, and Where it Sits. 18 

Terms of the Court of Common Peeas: 

Defined . 52 

Tipstaffs: 

Duties of. 40 

Trial : 

Addresses of the Counsel to the Jury.96, 101 

Affirmation of Witnesses. 98 

Charge of the Judge. 101 

Examinations of Witnesses. 98 

Exceptions to Ruling on Evidence. 98 

Illustration .102-142 

Judgment on Verdict. 142 

Jury in, Selection of. 96 

Oath and Affirmation of Jury at Beginning of Trial. 96 

Oath of Tipstaff Having Charge of the Jury. 101 

Oath of Witnesses. 97 

Objections to Evidence .98-99 

Objections to Witnesses .99-100 

Opening Case of Defendant. 97 

Opening Case of Plaintiff. 100 

Province of Judge . 130 

Province of Jury . 36 

Requests for Instructions to Jury. 100 

Subpoena, Form of. 97 

Verdict of Jury. 101 , 102 







































14 


CONTENTS. 


Trial List: page 

How made up . 95 

Praecipe Ordering Cases on. 95 

Witnesses : 

Affirmation, Form of. 98 

Cross-examination . 98 

Examination in Chief. 98 

Incompetent. 99-100 

Oath, Form of. 97 

Objections to..99-100 

Re Cross-examination . 98 

Re Direct Examination. 98 

Subpoena. 97 

Writs (See Forms) : 

Habeas Corpus . 16 

Injunction . 51 

Mandamus . 16 

Quo Warranto. 16 

















PRACTICES AND FORMS OF LAW 
AND EQUITY. 


COURTS THROUGH WHICH THE JUDICIAL POWER 
IS ADMINISTERED. 


Like the National Government, the powers vested in the Govern¬ 
ment of this Commonwealth are Executive, Legislative and Judicial. 
This work relates, alone, to the power last named. Hence the others 
are not defined. 

Courts. Courts of this Commonwealth consist of: I, Supreme 
Court; II, Superior Court; III, Court of Common Pleas; IV, Court 
of Oyer and Terminer and Jail Delivery; V, Court of Quarter Ses¬ 
sions of the Peace; VI, Orphans’ Court. 

Excepting the Superior Court, the maintenance of all these courts 
is enjoined by the Constitution of our State. But in this instrument 
the Legislature is given power to establish other courts. Through 
the exercise of this power the Legislature, in 1895, established the 
Superior Court. 






16 


PRACTICE AND FORMS OF LAW AND EQUITY. 


SUPREME COURT. 

Jurisdiction of the Supreme Court. Territorial jurisdiction em¬ 
braces the whole State. As to its subjects, the jurisdiction is divided 
into Original and Appellate. Original Jurisdiction is the jurisdic¬ 
tion which attaches to the beginning of actions and other judicial 
proceedings. Appellate Jurisdiction is the jurisdiction which a su¬ 
perior court has to re-hear causes that have been decided in inferior 
courts. 

Original Jurisdiction of Supreme Court. This court has orig¬ 
inal jurisdiction, in cases of injunction, where a corporation is de¬ 
fendant, of habeas corpus, of mandamus to courts of inferior juris¬ 
diction, and quo warranto as to all officers of the Commonwealth 
whose jurisdiction extends over the State. 

Habeas corpus is a writ directed to the person detaining another, 
and commanding him to produce the body of the prisoner at a cer¬ 
tain time and place, with the day and cause of his caption and deten¬ 
tion, to do, submit to', and receive whatsoever the court or judge 
awarding the writ shall consider in that behalf. 

Mandamus is a writ to compel inferior courts, public officers and 
corporations to do some particular thing therein specified, and which 
appertains to their office or duty. 

Quo warranto is a writ by which the Government commences an 
action to recover an office or franchise from the person or corpora¬ 
tion in possession of it. 

Appellate Jurisdiction of Supreme Court. To hear and deter¬ 
mine (a) all manner of pleas, plaint and causes which shall be 
brought or removed there from any other court of this Common- 


PRACTICE AND FORMS OF LAW AND EQUITY. 


17 


wealth, by virtue of any writ or process issued by said court, or any 
judge thereof, for that purpose; (b) to examine and correct all, and 
all manner of error of the justices, magistrates and courts of this 
Commonwealth, in the process, proceedings, judgments and decrees, 
as well in criminal as in civil pleas or proceedings, and, thereupon, 
to reverse, modify or affirm such judgments and decrees, or pro¬ 
ceedings, as the law doth or shall direct; (c) and, generally, to 
minister justice to all persons, in all matters whatsoever, as full and 
ample, to all intents and purposes, as the said court has heretofore 
had power to do, under the Constitution and laws of this Common¬ 
wealth ; (d) and to issue execution or other process for the recovery 
of costs which have accrued, or may accrue in said Supreme Court, 
as well as in all cases which have been heretofore decided. 


Districts in Which the Supreme Court Sits. 


Eastern District. 


Bedford, 

Berks, 

Blair, 

Bradford, 

Bucks, 

Cameron, 

Carbon, 

Chester, 

Centre, 

Clearfield, 

Clinton, 

Columbia, 

Pike, 

Potter, 

Schuylkill, 

Snyder, 


Crawford, 
Cumberland,. 
Delaware, 
Elk, 

Erie, 

Fayette, 

Franklin, 

Huntingdon, 

Juniata, 

Lackawanna, 

Lancaster, 

Lebanon, 

Sullivan, 

Susquehanna, 

Tioga, 

Union, 


Lehigh, 

Luzerne, 

Lycoming, 

McKean, 

Mifflin, 

Monroe, 

Montgomery, 

Montour, 

Northampton, 

Northumberland, 

Philadelphia, 

Perry, 

Warren, 

Wayne, 

Wyoming, 


York. 


Middle District. 


Adams, 


Dauphin, 


Fulton. 


18 


PRACTICE AND FORMS OF TAW AND EQUITY. 


Western District. 


Allegheny, 

Armstrong, 

Beaver, 

Butler, 

Cambria, 

Clarion, 


Jefferson, 

Lawrence, 

Mercer, 


Forest, 

Greene, 

Indiana, 


Somerset, 

Venango, 

Washington, 

Westmoreland. 


Terms of the Supreme Court and Where It Sits. 

Eastern District. 

Term each year is twenty-one weeks, beginning the first Monday 
of January. Session held in the city of Philadelphia. 

Middle District. 

Term each year is one week, from the twenty-first Monday after 
the first Monday in January. Session held in the city of Harrisburg. 

Western District. 

Term each year is three weeks, from the second Monday in Octo¬ 
ber. Session held in the city of Pittsburg. 

Bench of the Supreme Court. Consists of seven judges. If he 
so long behaves himself well, the term of service of each is twenty- 
one years, and the judge whose term first expires is Chief Justice. 
The annual salary of the Chief Justice is $10,500, and of- each of the 
other judges, $10,000. The judges now in service are: Chief Justice 
John T. Mitchell; Justices D. Newlin Fell, J. Hay Brown, S. Leslie 
Mestrezat, William P. Potter, John P. Elkins, and John Stewart. 

Appeals to the Supreme Court. To transfer a cause into this 
court appeal must be taken. Appeal is the removal of a cause from 
a court of inferior to one of superior jurisdiction, for the purpose of 
obtaining a review and re-trial. Right to the appeal must be exer¬ 
cised within six months after the entry of judgment or final decree 
or order. The party appealing is called appellant, and the other 
party appellee. To get the appeal into the court a praecipe, affidavit 
and bond must be filed with the prothonotary of that court. Follow¬ 
ing are the forms of the same: 


PRACTICE AND FORMS OF TAW AND EQUITY. 


19 


Praecipe and Affidavit. 


In the Supreme Court of Pennsylvania. 
For the Eastern District. 


Edward Overton, 

Plaintiff, 

vs. 


B. M. Peck, 

Defendant, 


Court of Common Pleas of the 
County of Luzerne. 

October Term, 1907. 

No. 97. 


Enter appeal on behalf of the defendant from judgment of the 
Court of Common Pleas, of the County of Luzerne. 

H. W. Patrick, 

Attorney for Appellant. 

To Aeex. K. McClure, Prothonotary, 

Supreme Court, Eastern District. 


County of Luzerne, ss. : 

B. M. Peck, being duly sworn, saith that said appeal is not taken 
for the purpose of delay, but because appellant believes he has suf¬ 
fered injustice by the judgment from which he appeals. 

Sworn and subscribed this first 
day of May, A. D. 1907. 



Henry Walser, 

Prothonotary. 




20 


practice: and forms of daw and equity. 


Bond. 


Edward Overton, 

Appellee, 

vs. 


C. P. of Luzerne County. 


B. M. Peck, 

Appellant. 


No. 97, October Term, 1907. 


Appellant having appealed from the judgment of the Court 
of Common Pleas, of the County of Luzerne, entered 2d day of 
January, 1907, to the Supreme Court, comes into' court with his 
sureties, and they acknowledge themselves bound and indebted to 
the Commonwealth of Pennsylvania, for the use of the said Ed¬ 
ward Overton, in the sum of one thousand dollars, to be levied 
of their property, real and personal, to be paid said obligee, his 
certain attorney or assigns. 

Upon This Condition, That if the said appellant shall pros¬ 
ecute the appeal with effect, and abide the order or decree of the 
Appellate Court, and pay all costs and damages awarded by the 
Appellate Court, or legally chargeable against said appellant, and 
pay all damages for injuries suffered by appellees from, the time 
of the decree entered, and all mesne profits accruing after judg¬ 
ment, then the above obligation to' be void, or else to remain in 
full force and virtue. 

Sealed and delivered the first ] 
day of May, A. D. 1907. J 

In presence of 

P. J. McPherson. 

B. M. Peck (L. S.) 

Hezekiah Pitcher (L. S.) 

« Henry Rockwell (L. S.) 



PRACTICE AND P0RMS OP PAW AND EQUITY. 


21 


Following are the indorsements used on the papers required in 
appeals to the Supreme Court: 


No. January Term, 190 

Supreme Court of Pennsylvania, 

EASTERN DISTRICT. 


EDWARD OVERTON, 

VS. 

B. M. PECK. 


APPEAL AND AFFIDAVIT. 


H. W. Patrick, 

Attorney for Appellant. 




22 


PRACTICE AND FORMS OF LAW AND EQUITY. 


C. P. Term, 1907. 


EDWARD OVERTON, 


vs. 


B. M. PECK. 


APPEAL BOND. 



practice: and forms of daw and equity. 


23 


SUPERIOR COURT. 

Territorial Jurisdiction. Embraces the whole State. 

Original Jurisdiction of Subjects. May issue writs of habeas 
corpus. 

Exclusive and Final Appellate Jurisdiction. (1) Of all pro¬ 
ceedings in the Court of Quarter Sessions or before any judge 
thereof, except cases involving the right to a public office. (2) Of 
all proceedings in the Court of Oyer and Terminer and Jail Deliv¬ 
ery, except cases of felonious homicide. (3) Of all other actions, 
claims or disputes of every kind, including distributions in the Com¬ 
mon Pleas, at law or in equity, whether originating therein or reach¬ 
ing that court by appeal or certiorari, from a justice of the peace or 
alderman or magistrate, if the value of the real or personal property, 
or the amount of money really in controversy in any single action 
or claim, is not greater than $1,500, exclusive of costs, except actions 
and proceedings which are brought, authorized or defended by the 
Attorney General in his official capacity, and except, also, cases in¬ 
volving the right to a public office. (4) Of all claims, disputes or 
other proceedings, including distributions in the Orphans’ Court, 
except those in which the Attorney General appears in his official 
capacity, and those in which the amount really in controversy in a 
single claim is greater than $1,500, exclusive of costs. (5) Of any 
case whatever,, civil or criminal, at law or in equity, or in the Or¬ 
phans’ Court, except felonious homicide, in which the parties or 
attorneys filed a stipulation in the proper court below, at any stage 
of the proceeding, agreeing that the case may be heard and decided 
by the Superior Court, although the case would otherwise have been 
appealable directly to the Supreme Court. 


24 


PRACTICE AND FORMS OF DAW AND EQUITY. 


Nevertheless, in any action or proceeding whatever above, com¬ 
mitted to the final and exclusive decision of the said court, there 
may still be an appeal from its judgment to the Supreme Court. 

First. If the jurisdiction of the Superior Court is in issue; or, 

Second. If the case involves the construction or application of 
the Constitution of the United States, or of any statute or treaty of 
the United States; or, 

Third. If the case involves the construction or application of 
the Constitution of Pennsylvania; or, 

Fourth. If the appeal to the Supreme Court be specially allowed 
by the Superior Court itself, or by any one justice of the Supreme 
Court. 

The Bench of. Is composed of seven judges. The term of each 
is ten years; annual salary of each $9,000, and the one whose com¬ 
mission has priority in time is the President Judge. The judges 
now members of the bench of this court are: President Judge, 
Charles E. Rice; Judges, William D. Porter, John J. Henderson, 
Thomas A. Morrison, George B. Orlady, John B. Head and James 
A. Beaver. 

Appeals. The method and effect of appeals are the same as 
provided in respect to the Supreme Court. Following are the forms 
used in taking an appeal from this court: 


PRACTICE AND FORMS OF UW AND EQUITY. 


25 


Praecipe and Affidavit. 

In the Superior Court of Pennsylvania, 
at Scranton. 


George Thompson 
vs. 

Henry Van Dike. 


In the Common Pleas Court, 
County of Franklin. 

No. 600, January Term, 1906. 


And now, first of March, 1907, George Thompson, above-named, 
appeals from the decree of the Court of Common Pleas of the Coun¬ 
ty of Franklin, in the above entitled cause to the Superior Court of 
Pennsylvania. 

Franklin County, ss. : 

George Thompson, being duly sworn according to law, doth de¬ 
pose and say that the above appeal is not intended for delay, but 
because the appellant firmly believes he has suffered injustice by the 
decree from which he appeals. 

Sworn and subscribed before me this ) David Elkins, 

1st day of March, A. D. 1907. j Prothonotary. 

Enter the above appeal in the Superior Court. 

To Sam. H. Stevens, Esq., 

Prothonotary of Superior Court, Scranton District. 

Thomas Chase, 

Attorney for Appellant. 




26 


practice: and forms of daw and equity. 


Bond. 

In the Common Peeas Court for the 
County of Franklin, State of Pennsylvania. 


George Thompson \ No. 600, January Term, 1906. 

vs. \ Appeal of George Thompson, 

\ Plaintiff, from the Decree of 
Henry Van Dike. / said Court. 


Know All Men By These Presents, That we, Henry John¬ 
son, Charles Heminway and George Thompson, are held and firmly 
bound unto the Commonwealth of Pennsylvania, to the use of all 
parties interested, in the sum of two' thousand dollars, lawful money 
of the United States, to be paid to the said Commonwealth, to the 
use of the party or parties entitled thereto, or his certain executors, 
administrators or assigns, being double the amount of said order, 
judgment or decree, and all costs accrued and likely to accrue, to 
which payment, well and truly to be made and done, we do bind 
ourselves, our heirs, executors and administrators, and every one of 
them, firmly by these presents. 

Sealed with our seals and dated this first day of March, A. D. 
1907. 

Whereas, the said George Thompson has appealed to the Super¬ 
ior Court of Pennsylvania from the decree of the Court of Common 
Pleas, No. one, of the County of Franklin, in the above stated suit 
or proceedings. 

Now, the condition of this obligation is such, that if the said 
appellant will prosecute this appeal with effect, and will pay all costs 
and damages awarded by the Appellate Court, or legally chargeable 
against him, then this obligation to be void, otherwise to remain in 

full force and virtue. _ _ 

George Thompson (Seal). 

Henry Johnson (Seal). 

Charles Heminway (Seal). 

Sealed, signed and delivered in 
the presence of 

Edward Smith, 

Thomas A. Hendricks. 




practice: and forms of law and equity. 


27 


Following are the indorsements on papers required in appeals to 
the Superior Court: 


No. January Term, 190 

Superior Court of Pennsylvania 


GEORGE THOMPSON, 

VS. 

HENRY VAN DIKE. 


APPEAL AND AFFIDAVIT. 


Thomas Chase, 

Attorney for Appellant . 




28 


practice and forms of eaw and equity. 


No. Term, 190 


GEORGE THOMPSON, 

vs. 

HENRY VAN DIKE. 


BOND. 

(Under Sections 6 and 13, Act 1897.) 


Filed 190 


BOND ON APPEAL 

TO THE 

SUPERIOR COURT OF PENNSYLVANIA 



PRACTICE AND FORMS OF LAW AND EQUITY. 


29 


COURT OF COMMON PLEAS. 

The remainder of this work will be devoted to the organization, 
practice, forms, actions, etc., of the Court of Common Pleas; the 
work required of a stenographer in offices in which the clerical bus¬ 
iness of this court is transacted, and in the offices of lawyers. 

Jurisdiction. This term expresses the authority of the court to 
hear and determine controversies, make rules, orders, decrees, etc. 
The scope of the jurisdiction of the Court of Common Pleas is ascer¬ 
tained by statutes, as follows: 

1. To hear and determine all pleas, actions and suits, and causes, 
civil, personal, real and mixed. 

2. To grant, under judicial seals, all lawful writs and processes 
necessary for the exercise of such jurisdiction. 

3. To award process, to levy and recover such fines, forfeitures 
and amercements as shall be imposed, taxed or adjudged. 

4. To establish such rules for regulating the practice in said 
court, and for expediting the determination of suits, causes and pro¬ 
ceedings therein, as in their discretion they shall judge necessary 
or proper. 

5. To issue writs of subpoena, under the official seal, into any 
county of this Commonwealth, to summon and bring before them 
any person to give testimony in any cause or matter depending 
before them. 

6. To make an order fixing the number of the regular terms of 
the said courts, and establishing the times for holding the same. 

7. To make all necessary rules and regulations for the trans¬ 
action of all business brought before them. 

The Court of Common Pleas, also, exercises the jurisdiction of a 
Court of Chancery. This jurisdiction extends to all of the following 
proceedings: 

I. The perpetuation of testimony. 

IT. The obtaining of evidence from places not within the State. 


30 


PRACTICE AND FORMS OF LAW AND EQUITY. 


III. The care of the persons and estates of those who are non 
compos mentis. 

IV. The control, removal and discharge of trustees, and the 
appointment of trustees, and the settlement of their accounts. 

V. The supervision and control of all corporations other than 
those of a municipal character, and unincorporated societies or asso¬ 
ciations, and partnerships. 

VI. The care of trust moneys and property, and other moneys 
and property made liable to the control of the said courts. 

VII. The supervision and control of partnerships. 

VIII. The discovery of facts material to a just determination 
of issues, and other questions arising or depending in the said courts. 

IX. The determination of rights to property or money claimed 
by two or more persons, in the hands or possession ol a person 
claiming no right of property therein. 

X. The prevention or restraint of the commission or contin¬ 
uance of acts contrary to law and prejudicial to the interests of the 
community or the rights of individuals. 

XI. The affording of specific relief, when a recovery in dam¬ 
ages would be an inadequate remedy. 

XII. In all cases of dower and partition. 

XIII. The settlement of disputed, claims between parties claim¬ 
ing to be tenants in common of mines. 

XIV. In suits for the foreclosure of mortgages of railroad, 
canal, navigation companies. 

XV. The perpetuation of testimony in cases of lost or destroyed 
records of any of the courts of record of the Commonwealth. 

XVI. In all cases over which the Courts of Chancery entertain 
jurisdiction on the grounds of fraud, accident, mistake or account. 

Judicial Districts. The jurisdiction of each court is limited to 
certain territorial districts, called judicial districts. In other words, 
they are the divisions of the territory of the State in which the sev¬ 
eral subordinate courts, through which the judicial power of the 
Commonwealth is administered, are established. Each district is 
numerically designated, beginning with number one. The popula¬ 
tion of each district must be not less than 40,000. Hence some of 
them embrace more than one county. In the whole State there are now 


PRACTICE AND FORMS OF LAW AND EQUITY. 


31 


56 districts, each of 47 consisting of one county, 7 of two, and 2 of 
three. Following is a schedule of the number and county or coun¬ 
ties of each district, and the place in each at which the meetings of 
the court are held: 


Number of District. 


County or Counties. 


One_ 

Two_ 

Three_ 

Four_ 

Five_ 

Six- 

Seven_ 

Eight- 

Nine_ 

Ten_ 

Eleven_ 

Twelve__ 

Thirteen_ 

Fourteen_ 

Fifteen_ 

Sixteen_ 

Seventeen_ j 

Eighteen_ 

Nineteen_ 


Philadelphia_ 

Lancaster_ 

Northampton_ 

Tioga- 

Allegheny_ 

Erie_ 

Bucks_ 

N orthumberland 

Cumberland_ 

Westmoreland-_ 

Luzerne- 

Dauphin- 

Greene_ 

Fayette_ 

Chester_ 

Somerset_ 

Union_ 

Snyder_ 

Clarion_ 

York—__ 


[ 

Twenty- j 

l 

Twenty-one- 

Twenty-two_ 

Twenty-three- 

Twenty-four- 

r 

Twenty-five- ^ 

l 

Twenty-six- -j 


Iluntingdon 

Mifflin- 

Bedford- 

Schuylkill-- 

Wayne_ 

Berks_ 

Blair_ 

Clinton- 

Cameron— 

Elk_ 

Columbia_ 

Montour_ 


Court Meets. 


Philadelphia 

Lancaster 

Easton 

Wellsboro 

Pittsburg 

Erie 

Doylestown 

Sunbury 

Carlisle 

Greensburg 

Wilkes-Barre 

Harrisburg 

Waynesburg 

Lffliontown 

West Chester 

Somerset 

Lewisburg 

Middlesburg 

Clarion 

York 

Huntingdon 

Lewistown 

Bedford 

Pottsville 

Honesdale 

Reading 

Hollidaysburg 

Lock Haven 

Emporium 

Ridgway 

Bloomsburg 

Danville 



































































32 


practice: and forms of eaw and equity. 


Number of District. 


Twenty-seven 

Twenty-eight- 

Twenty-nine_. 

Thirty_ 

Thirty-one_ 

Thirty-two_ 

Thirty-three. _ 
Thirty-four. 

Thirty-five_ 

Thirty-six_ 

Thirty-seven.. 

Thirty-eight. _ 

Thirty-nine_ 

Forty_ 

Forty-one_ 

Forty-two_ 

Forty-three_ 

Forty-four_ 

Forty-five._ 

Forty-six_ 

Forty-seven_ 

Forty-eight_ 

Forty-nine_ 

Fifty_ 

Fifty-one_ 

Fifty-two_ 

Fifty-three_ 

Fifty-four_ 

Fifty-five_ 

Fifty-six_ 


County or Counties. 

Court Meets. 

Washington 

W ashington 

Venango 

Franklin 

Lycoming 

Williamsport 

Crawford 

Meadville 

Lehigh 

Allentown 

Delaware 

Media 

Armstrong 

Kittanning 

Susquehanna 

Montrose 

Mercer 

Mercer 

Beaver 

Beaver 

Warren 

Warren 

Forest 

Tionesta 

M ontgomery 

Norristown 

F ranklin 

Chambersburg 

Indiana 

Indiana 

Juniata 

Mifflin stown 

Perry 

New Bloomfield 

Bradford 

To wan da 

Pike 

Milford 

Monroe 

Stroudsburg 

Wyoming 

Tunkhannock 

Sullivan 

Laporte 

Lackawanna 

Scranton 

Clearfield 

Clearfield 

Cambria 

Ebensburg 

McKean 

Smethport 

Centre 

Bellefonte 

Butler 

Butler 

Adams 

Gettysburg 

Fulton 

McConnellsburg 

Lebanon 

Lebanon 

Lawrence 

New Castle 

Tefiferson 

Brookville 

Potter 

Coudersport 

Carbon 

Mauch Chunk 












































































practice; and forms of law and equity. 


33 


Officers of the Court. 

Judges. A judge is a public officer elected to preside and 
administer the law in a court of justice; the chief member of a 
court and charged with the control of proceedings and the decision 
of questions of law or discretion. In every judicial district consist¬ 
ing of one county, the court must have a President Judge, and 
whenever the Legislature deems it necessary for the expeditious 
transaction of the business of the court in any district, they may 
authorize the installment of one or more Additional Law Judges 
therein, all of whom, like the President Judge, and all those of the 
Supreme and Superior Courts, must be persons learned in the law. 
In districts composed of more than one county, besides the President 
Judge, there are two Associate Judges for each county, not learned 
in the law. The term of each judge of this court is ten years, and 
the annual salary of each as follows: 

Eight thousand five hundred dollars in the first and fifth judicial 
districts. 

Seven thousand five hundred dollars in district consisting of 
Dauphin County. 

Six thousand dollars in all judicial districts having a population 
of 90,000 and less than 500,000, and where, in such a district there 
is only one judge, $1,000 additional. 

Five thousand dollars in all other judicial districts having a pop¬ 
ulation of less than 90,000. 

The compensation of each Associate Judge is as follows: Those 
whose attendance at court does not exceed four weeks per annum, 
the sum of $150. 

Those whose attendance at court exceeds four weeks, and does 
not exceed six weeks, $180. 

Those whose attendance at court exceeds six weeks, and does not 
exceed eight weeks, $250. 

Those whose attendance at court exceeds eight weeks, and does 
not exceed ten weeks, $300. 

Those whose attendance at court does not exceed twelve weeks, 
$360. 

Those whose attendance exceeds twelve weeks, $420. 


34 


practice; and forms of law and equity. 


Following is the number of Law Judges of Common Pleas in 
each judicial district, and the salary paid to each: 


No. 

Dist. 

Pres. Judge 

Additional 
Law Judge 

Salary of Each 

Total Salary 

1 

Five 

Ten 

$8,500 

$127,500 

2 

One 

One 

6,000 

12,000 

3 

One 

One 

6,000 

12,000 

4 

One 


• 5,000 

5,000 

5 

Four 

Eight 

8,500 

102,000 

6 

One 

7,000 

7,000 

7 

One 


5,000 

5,000 

8 

One 

One 

6,000 

12,000 

9 

One 


5,000 

5,000 

10 

One 

One 

6,000 

12,000 

11 

One 

Three 

6,000 

24,000 

12 

One 

One 

7,500 

15,000 

13 

One 


5,000 

5,000 

14 

One 

One 

6,000 

12,000 

15 

One 

One 

6,000 

12,000 

16 

One 


5,000 

5,000 

17 

One 


5,000 

5,000 

18 

One 


5,000 

5,000 

19 

One 

One 

6,000 

12,000 

20 

One 


7,000 

7,000 

21 

One 

Two 

6,000 

18,000 

22 

One 


5,000 

5,000 

23 

One 

One 

6,000 

12,000 

24 

One 


5,000 

5,000 

25 

One 


5,000 

5,000 

26 

One 


5,000 

5,000 

27 

One 

One 

6,000 

12,000 

28 

One 


5,000 

5,000 

29 

One 


5,000 

5,000 

30 

One 


5,000. 

5,000 

31 

One 


7,000 

7,000 

32 

One 

One 

6,000 

12,000 

33 

One 


5,000 

5,000 

34 

One 


5,000 

5,000 

35 

One 


5,000 

5,000 

36 

One 


5,000 

5,000 

37 

One 


5,000 

5,000 

38 

One 

One 

6,000 

12,000 

39 

One 


5,000 

5,000 

40 

One 


5,000 

5,000 

41 

One 


5,000 

5,000 
















PRACTICE AND EORMS OE UW AND EQUIT\. 


35 


No. 

Dist. 

Pres. Judge 

Additional 
Taw Judge 

Salary of Each 

Total Salary 

42 

One 


5,000 

5,000 

43 

One 


5,000 

5,000 

44 

One 


5,000 

5,000 

45 

One 

Two 

6,000 

18,000 

46 

One 


5,000 

5,000 

47 

One 


7,000 

7,000 

48 

One 


5,000 

5,000 

49 

One 


5,000 

5,000 

50 

One 


5,000 

5,000 

51 

One 


5,000 

5,000 

52 

One 


5,000 

5,000 

53 

One 


5,000 

5,000 

54 

One 


5,000 

5,000 

55 

One 


5,000 

5,000 

56 

One 


5,000 

5,000 


All the other Law Judges of the State are the judges of the Or¬ 
phans’ Court. This court is maintained in only each of certain judi¬ 
cial districts of the State, viz: the first, second, fifth, tenth, eleventh, 
twenty-first, twenty-third, thirty-eighth and forty-fifth. Altogether 
there are fourteen, distributed as follows: Five in the first district, 
one in the second, three in the fifth, and one in each of the other 
districts. In districts in which there are more than one judge, the 
judge oldest in service is President Judge, and the others are called 
Associate Judges. The term for which each is elected is ten years. 
The annual salary of the judge in each district is as follows: 


In the 1st district_$8,500 

“ “ 2nd “ 6,000 

“ “ 5th' “ 8,500 

“ “ 10th “ 6,000 

“ “ 11th “ 6,000 

“ “ 21st “ 6,000 

“ “ 23rd “ 6,000 

“ " 38th “ 6,000 

“ “ 45th “ 6,000 


Jury. Is a certain number of men, selected according to law, 
and sworn to inquire of certain matters of fact, and declare the truth 
upon evidence to be laid before them. The number of jurors re- 





















36 


practice: and forms of daw and equity. 


quired in all judicial districts other than that of Philadelphia, in 
the Courts of Common Pleas, is not less than 36, nor more than 60. 
In Philadelphia the number is not less than 48 nor more than 60. 
Jurors must be qualified electors of the county in which they are 
chosen to serve, and the law enjoins the selection of sober, intelli¬ 
gent and judicious persons. It is the province of the jury to deter¬ 
mine questions of fact according to the evidence submitted to them 
at the trial of causes, and the instructions of the judge concerning 
the law applicable to these questions of fact. 


The Prothonotary. Is an officer of the court. Acting in this 
capacity it is his duty to enter, in a docket provided for that purpose, 
all proceedings of which a record is required; to administer oaths to 
witnesses and jurors, and to take into his custody the records and 
seal of the court, and keep the same at the place of holding such 
court, and in the apartments provided, by authority of law, for that 
purpose. 

In this State the powers of the prothonotary are prescribed by 
statute as follows: 

1. To assign and affix the seal of the respective court to all 
writs and process, and also to the exemplifications of all records and 
process therein. 

2. To take bail in civil actions, depending in the respective court. 

3. To enter judgments, at the instance of plaintiffs, upon the 
confessions of defendants. 

4. To sign all judgments. 

5. To take the acknowledgment of satisfaction of judgments 
or decrees entered on the record of the respective court. 

6. To administer oaths and affirmations in conducting the bus¬ 
iness of their respective offices. * • 

Excepting in judicial districts governed, in this behalf, by special 
statutes, the dockets used in the prothonotary’s office, and contents 
of same, are as follows: 

Continuance Docket. In this record are entered all suits begun 
in the Common Pleas, and brought into this court by appeals; also 
many other proceedings, not strictly suits or appeals. Associated 
with this docket is a Continuance Docket Index, in which the names 
of the parties connected with every proceeding are alphabetically 



practice; and forms of daw and equity. 37 

listed; it also contains references to the number and term of each 
case, and the number of the continuance docket. 

Judgment Index Docket. In this are entered, alphabetically, 
names of the parties to the judgment; number and term' of case; 
where the sum of same is certain, the amount of the judgment: 
whether founded on an award, verdict, transcript, or other lien; 
date of the beginning of interest, and costs. 

Execution Docket. In this docket are entered the names of the 
parties to the judgment on which any execution process is issued; 
number and term of the judgment; amount of the judgment, date 
from which interest is payable; costs taxed in continuance docket, 
called face costs. 

Arbitration Docket. Rule to arbitrate certain actions may be 
taken by either party to a suit. This rule, and all proceedings under 
it, are entered in this docket. 

Ejectment Index Docket. This bpok contains transcripts of the 
papers filed in the case, and entries in the continuance docket. The 
purpose of this record is to give notice to purchasers and mortga¬ 
gees of the plaintiff’s claim of title to the land in dispute. 

Mechanic’s Lien Docket. This record consists of a description 
of the land against which the lien is filed ; copy of claim of plaintiff; 
the names of the owner of the land, contractor, architect or builder, 
and the creditor or plaintiff. 

Tax Lien Docket. This book is provided for the returns of the 
county commissioners of taxes unpaid within a certain time after 
levy of the same. The items entered are: names of parties against 
whom the taxes are assessed; nature of the property upon which the 
taxes are levied; distribution of the taxes; penalty for non-payment 
of same at the time appointed; description of the property; when 
the returns were made to the prothonotary. 

Medical Register. The entries in this are: name of the physi¬ 
cian ; his or her place of nativity; his or her place of residence; the 
name of the college or university that conferred the degree of doctor 
of medicine; the year when such degree was conferred, and in like 
manner, any other degree or degrees that the physician may desire 
to place on the record. 


38 


PRACTICE AND FORMS OF LAW AND EQUITY. 


Partition Docket. Prothonotary is required to enter in this 
book all the proceedings in partition, from the commencement of the 
same to the final judgment and decree therein. 

Sheriff’s Deed Book. It is the duty of the prothonotary to 
record in this book all sheriff’s deeds, and to index the same in both 
the names of the grantor and grantee. 

Treasurer’s Deed Book. This book contains copies of deeds 
executed by the county treasurer for lands sold by him for the pay¬ 
ment of taxes. 

Alien Docket. This is a record of all foreign born people, nat¬ 
uralized. In it appear the names of persons admitted to citizenship; 
the names of the country from which each emigrated to this coun¬ 
try; date of admission. 

Record of Suits Before Justices and Aldermen Against Bor¬ 
oughs, Townships and School Districts. In this book, upon presen¬ 
tation of certificate, by the plaintiff, of judgment recovered before 
one of said magistrates, against either of said municipalities, the 
prothonotary must enter; name of the municipality; name of plain¬ 
tiff ; sum for which judgment was recovered; date of its entry; name 
of the justice or alderman by whom the judgment was rendered. 

Equity Docket. Abstracts of all proceedings in equity cases are 
entered in this docket. 

Auditors’ Report Docket. The reports of auditors, appointed 
by the court to' make distribution of moneys arising from sheriff’s 
and other judicial sales, are entered in this docket. 

Court Clerk. Is appointed by the prothonotary to serve the 
court, when in session, as follows: 

Call the names of jurors summoned to attend court; draw from 
the jury box the slips of paper on which the names of jurors are 
written; furnish a list of the jurors drawn to the attorneys repre¬ 
senting the parties to the trial; call the roll of the trial jurors; swear 
or affirm jurors and witnesses, and all other persons sworn or af¬ 
firmed in open court; call the roll of the trial jurors when they return 
to court with their verdict, and receive, present to the trial judge, 


PRACTICE AND FORMS OF LAW AND EQUITY. 


39 


announce and record the verdict; keep a record, in a book provided 
for that purpose, of all motions, petitions, etc., presented to the 
judges, and of all rules, orders, decrees, etc., granted or made by the 
judges. 

Stenographers. In every Court of Common Pleas the appoint¬ 
ment, by the law judges of said court, of a stenographer or sten¬ 
ographers is required. It is his duty to report all suits and proceed¬ 
ings in said courts, and also the proceedings in all the criminal 
courts, when employed by the law judges thereof to serve in said 
courts. He must be competent in the art of stenography, and, be¬ 
fore entering upon the discharge of his duties, is required to make 
oath or affirmation, before the prothonotary or clerk of the court, to 
perform his duties with fidelity. The stenographer thus appointed 
is known as the official stenographer, and holds his position during 
the pleasure of the court. His compensation is as follows: 

If not allowed an annual salary, ten dollars per day for every 
day present upon a trial or other proceeding, for the purpose of 
taking notes, by direction of any judge or judges of any of the 
courts, or in attendance upon any of the said judges in connection 
with the business of the courts, and is also allowed, in addition, such 
expenses and supplies as the court deems proper and necessary. 

The judge or judges of the court may change the per diem com¬ 
pensation of the stenographer to an annual, and in such case his sal¬ 
ary may be fixed at not less than $1,500.00 and not more than $3,- 
000 . 00 . 

In addition to his per diem, or annual compensation, the sten¬ 
ographer is entitled to fifteen cents for each one hundred words of 
every copy of the stenographic notes of trials, and of other matters 
in connection with the business of the court, that are furnished to 
the court or filed of record, and five cents for each one hundred 
words of every copy that is given to counsel or to parties, if ordered, 
so that they may be typewritten at the same time with filing the copy; 
payment for such copies to be made by the county in which the case 
is pending, or for which the work is performed, upon the order of 
the presiding judge. 

Crier. The judges of the courts are authorized by statute to ap¬ 
point a court crier. A court crier is an officer of the court who 
makes proclamations; his principal duties are to announce the open- 


40 


PRACTICE AND FORMS OF LAW AND EQUITY. 


mg- of the court and its adjournment, and the fact that certain spe¬ 
cific matters are about to be transacted; to announce the admission 
of persons to' the bar; to call the names of jurors, witnesses and par¬ 
ties ; to announce that witness has been sworn ; to proclaim silence, 
when so directed, and, generally, to make such proclamations of a 
public nature as the judges order. 

For some of the proclamations made by him regular forms are 
prescribed. Among these are the following: 

Opening of Court. 

Ah, yea! Ah, yea! Ah, yea! All persons bound by recognizance 
or otherwise, to appear before the Judges of the Courts of Oyer and 
Terminer, General Jail Delivery, Court of Quarter Sessions of the 
Peace and Common Pleas, held here this day, in and for the County 
of Carbon, let them draw nigh and give their attention, and they 
shall be heard. God save the Commonwealth and this Honorable 
Court. 

Closing Court. 

Ah, yea! Ah, yea! Ah, yea ! All you good people who have given 
your attention here this day will now depart, and give your attention 
here at ten o’clock a. m. to-morrow, at which time and place this 
court now stands adjourned. 


Tipstaffs. The judges have power to appoint as many tipstaffs 
as may be necessary to attend upon the court. These officers are 
called tipstaffs because, when on duty, they are required to carry 
long staffs, tipped with metal crowns or caps, in ancient times the 
badge of a constable. Their duty is to wait upon the court when it 
is in session, preserve order, serve processes and guard juries. 

Equity. 

Court of Chancery or Equity. A court which administers jus¬ 
tice according to the rules of equity. As a separate tribunal this 
court does not exist in this State. Its jurisdiction and powers, as 
already shown, are vested in the Court of Common Pleas. The hear¬ 
ings and trials, in cases within the equitable jurisdiction of this court, 
are had before the judge sitting as chancellor, or before a referee, 
the office of master, except in proceedings whose decrees or inter¬ 
locutory orders are to be executed, or their execution supervised by 
an officer of the court, having been discontinued. 



PRACTICE AND FORMS OF DAW AND EQUITY. 41 

Commencement of Suits, Etc., in the Equity Jurisdiction. All 

suits and all other proceedings are begun by filing, in the Prothon- 
otary’s office, a printed bill. 

Bill and Its Structure. A bill is a complaint addressed to the 
Honorable, the Judges of the Court of Common Pleas. (1) Must 
be expressed in as brief and succinct terms as it reasonably can be, 
and contain no< unnecessary recitals of deeds, documents, contracts 
or other instruments, or any other impertinent matter, or any scan¬ 
dalous matter not relevant to the suit. (2) The introductory part of 
the bill must contain the names of all the parties, plaintiffs and de¬ 
fendants, by and against whom it is brought. In the title must be, 
viz: “In the Court of Common Pleas, sitting in equity.” “Between 
A B, plaintiff, and C D, defendant.”. “To> the Honorable, the Judges 
of the said Court, your orator complains and says.” (3) The bill 
must be divided into paragraphs, consecutively numbered, and con¬ 
tain a succinct statement of the facts upon which the plaintiff asks 
relief, and, at his option, the facts which are intended to avoid an 
anticipated defence, such averments as may be necessary under the 
rules of equity pleading, to entitle the plaintiff to relief, the prayer in 
paragraphs, for relief, and for orders, writs or process. 

Form of Bill of Complaint. 

In the Court of Common Peeas of Luzerne County, 
Sitting in Equity. 


R. C. Mitcheee 


vs. 


No. January Term, 


Thomas Evans and Henry 
Evans, doing business in the 
firm name of Evans Bros. 


1900. 


To the Honorable, the Judges of the said Court: 

Your orator complains and says: 

First. That your orator resides and owns considerable valuable 
real estate in the village of Plainsville, this county, which said real 
estate consists of vacant and improved building lots. 




42 


practice: and forms of daw and equity. 


Second. That the respondents, some time during the two years 
last past, established a factory for manufacturing fertilizers from 
bones, near the main street of said village, distant from the residence 
of your orator and his family about one thousand feet, and in the 
immediate neighborhood of a large number of residences and the 
said lots of your orator, and the same operated until some time dur¬ 
ing the summer last past, when the building containing the said 
factory was destroyed by fire. 

Third. That the respondents have commenced rebuilding the 
aforesaid building at the place aforesaid, and propose to resume 
therein the operation of the aforesaid factory. 

Fourth. That during the time past, when the said factory was 
in operation as aforesaid, the odors issuing therefrom were of the 
most offensive character and injurious to the health, and in conse¬ 
quence thereof the lives of your orator and his family were made 
uncomfortable, and the value of your orator’s real estate was greatly 
depreciated during all the time the said factory was operated as 
aforesaid. 

Fifth. That immediately before or about the time the respond¬ 
ents commenced rebuilding the building destroyed by fire aforesaid, 
your orator notified the said respondents that he would resist, by 
every lawful means, any attempt on the part of said respondents to 
resume operating the said factory at the place aforesaid, and in reply 
thereto the said respondents notified your orator that they proposed 
to rebuild the said building at the place aforesaid, and, as soon as 
the same is completed, resume the operation of the said factory. . 

Sixth. That the machinery and all other facilities and equip¬ 
ments employed in the factory operated in the building destroyed 
as aforesaid, the respondents propose to use in the building now in 
process of erection, and the same cannot be operated without pro¬ 
ducing the odors aforesaid. 

Seventh. That the aforesaid factory cannot be operated under 
any conditions, or with the best equipments and facilities, without 
producing the most offensive odors, injurious to the health and de¬ 
structive of the comfort of your orator and his family, and causing 
great depreciation of the value of your orator’s aforesaid real estate. 

Eighth. That unless the respondents are enjoined from oper¬ 
ating the said factory, at the place aforesaid, your orator will suffer 
irreparable damage. 


practice: and forms of daw and fquity. 


43 


Prayer. 

In consideration whereof your orator prays: 

First. That the respondents be enjoined and restrained, by the 
injunction of this Honorable Court, from operating the aforesaid 
factory at the place aforesaid. 

Second. That the respondents be enjoined and restrained, by 
injunction of this Honorable Court, from operating the said factory 
in such a manner as to produce offensive odors, injurious to the 
health or comfort of your orator and his family. 

Third. That the respondents be enjoined and restrained, by the 
injunction of this Honorable Court, from operating the said factory 
in such a manner as to depreciate the value of your orator’s said 
real estate. 

Fourth. That such other and further relief in the premises be 
granted as may seem agreeable in equity and good conscience. 

D. A. Fell, Jr., 
Solicitor for Plaintiff. 


Luzerne County, ss. : 

R. C. Mitchell, orator in the foregoing bill, being duly sworn, 
deposes and says that the facts set forth in said bill are true so far 
as the same are stated on his own knowledge, and that so far as he 
speaks from information of others, he verily believes them to be true. 

R. C. Mitchell. 

Sworn and subscribed before me 
this first day of October, 1900. 

Ira Kirkendall, 

Mayor. 

Appendix. If copies of any writings referred to in the bill are 
furnished, the appendix in the back part of the book is the place for 
them. 

Notice. Notice of the filing of the bill, and a certified true copy 
of the same, must be given to each defendant personally, or left at 
his dwelling house with an adult member of his family, or the fam¬ 
ily in which he resides. The notice must be indorsed on the bill, of 
which the following is the form, and also of the remainder of the 
whole indorsement: 


44 


PRACTICE AND FORMS OF LAW AND EQUITY. 


IN EQUITY. 

No. , January Term, 1900. 

In the Court of Common Pleas 
of Luzerne County. 

Robert C. Mitchell, 

Plaintiff, 

vs. 

Thos. Evans and PIenry Evans, 
doing business in the firm name 
of Evans Bros., 

Defendants. 

Complainant’s Bill. 

Filed, 1900. 

To the within-named defendant: 

You are hereby notified and required, within 
fifteen days after service hereof on you, to cause 
an appearance to be entered for you in the Court 
of Common Pleas of Luzerne County, Sitting in 
Equity, and to file your answer within thirty days 
to the within Bill of Complaint of the within- 
named plaintiff. You are also notified that if 
you fail to comply with the above directions, by 
not entering an appearance in the Prothonotary’s 
Office, within fifteen days, or by not filing your 
answer within thirty days, you will be liable to 
have the bill taken pro confesso, and a decree 
made against you in your absence. 

Witness my hand at Wilkes-Barre, Pa., this 
first day of December, 1899. 

D. A. Fell, 
Attorney for Plaintiff. 



PRACTICE AND FORMS OF LAW AND EQUITY. 


45 


Failure of defendant to comply with this notice, within thirty 
days after service of the same, gives plaintiff the right to cause the 
bill to be taken pro confesso. This right is exercisable in a praecipe, 
addressed to the Prothonotary, directing him to enter judgment pro 
confesso , against the defendant for one of either appearance or an¬ 
swer, or of both. 

Pro Confesso. Means, as confessed; as if conceded, taken for 
granted. In other words, judgment pro confesso ascertains the truth 
of all allegations of fact, and, if they are sufficient in law or equity 
to entitle the plaintiff to the decree prayed in his bill, it will be 
granted without requiring of him any evidence not furnished in the 
bill. To avoid such a judgment against him, the defendant, as al¬ 
ready shown, must enter an appearance, demurrer or answer within 
the time appointed for the purpose. 

Appearance. This act is performed through a praecipe direct¬ 
ing the prothonotary to enter the name of the defendant’s attorney 
in the record of the case. 

Demurrer. An allegation that, admitting the facts in plaintiff’s 
bill to be true, as stated by him, he has not shown cause why the de¬ 
fendant should be compelled by the court, to proceed further. In 
other words, that the facts stated in the bill do not, in the absence of 
any denial on the part of the defendant, entitle the plaintiff to the 
decree prayed for in his bill. 


46 


PRACTICE AND FORMS OF LAW AND EQUITY, 


Form of the Demurrer. 

In the Court of Common Pleas of Luzerne County, 
Sitting in Equity. 


Robert C. Mitchell, \ 

Plaintiff. 1 

vs. I No. 

Thos. Evans and Henry / 

Evans, doing business in firm 1 January 1 erm, 1900, 

name of Evans Brothers, | 

Defendants. ) 


Demurrer of defendants to the bill of complaint of Robert C. 
Mitchell, above named plaintiff. 

The defendants demur to the whole bill on the ground that the 
complainant has not, by his said bill, made such a case as entitles 
him>, in a Court of Equity, to any discovery or relief from or against 
these defendants, touching the matter contained in the said bill, or 
any of such matters; the case set out in said bill being simply such 
as entitles said complainant to an action of trespass to recover 
damages. 

Wherefore, and for divers other good causes of demurrer ap¬ 
pearing in the said bill of complaint, these defendants do demur to 
the said bill, and to all matters and things therein contained, and 
pray the judgment of this Honorable Court whether they shall be 
compelled to make any further or other answer to' said bill; and they 
humbly pray to be hence dismissed with their reasonable costs in this 
behalf sustained. 

Thomas Evans, 

Henry Evans. 




PRACTICE AND EORMS OE LAW AND EQUITY. 


47 


State oe Pennsylvania, 

County oe Luzerne, 

Thomas Evans, one of the above named defendants, being duly 
sworn, saith the foregoing demurrer is not interposed for delay. 

Thomas Evans. 



Sworn and subscribed before me this second day of May, 1900. 


L. H. Bennett, 

Attorney for Defendants. 


Reese Leoyd, 
Clerk of the Courts. 


Indorsement on the demurrer should be signed by defendants’ 
attorney as follows: 


L. H. Bennett, 


Attorney for Defendants. 


Answer and Structure of the Same. A defence in writing made 
by a defendant to the charges contained in a bill or information filed 
by the plaintiff against him. The defendant is required (1) to make 
answer, in the first person, to all the material allegations of the bill ; 
(2) divided into paragraphs, numbered consecutively, and each par¬ 
agraph containing, as nearly as may be, a separate allegation. 


48 


PRACTICE AND FORMS OF LAW AND EQUITY. 


Form of Answer. 


In the Court of Common Pleas of Luzerne County, 
Sitting in Equity. 


R. C. Mitchell, \ 


Plaintiff, \ 


vs. 1 

No. 

Thomas W. Evans and Henry / 

W. Evans, doing business in l 

Term, 1900. 

the firm name of Evans \ 
Brothers, ! 


Defendants. / 



To the Honorable Judges of the said Court: 

The answer of the defendants to the said plaintiff’s Bill of Com¬ 
plaint, now, and at all times hereafter, saving to themselves all and 
all manner of benefit or advantage to the manifold errors, uncer¬ 
tainties and imperfections in the said bill contained, respectfully 
showeth: 

I. We admit that plaintiff resides and owns real estate in Plains- 
ville, but we are not apprised of the exact amount or value thereof, 
and we are informed, as matter of law, that said plaintiff’s owner¬ 
ship of vacant building lots is wholly immaterial in this case. 

II. We admit that in 1899 we, and David W. Evans, established 
on the lands of us, the defendants, a building and machinery for 
grinding clean bones into' a powder, known as bone dust, and used 
for fertilizing purposes, but we deny that it was near the main street 
of said village of Plainsville, or within one thousand feet of the res¬ 
idence of plaintiff and his family, and aver that it was between eleven 
and twelve hundred feet distant from said residence, and we also 
deny that the same was located in the immediate neighborhood of a 




PRACTICE: AND FORMS OP PAW AND PQU1TY. 


49 


large number of residences, though we are informed, as matter of 
law, that if such were the fact it would be here immaterial, as said 
residences are not alleged to belong to the plaintiff. We admit that 
said establishment or bone mill was near certain vacant land of the 
plaintiff, but are informed, as matter of law, that this fact is imma¬ 
terial in this case, and we also admit the operation of said bone mill 
until August 31, 1899, when the building was destroyed by fire. 

III. We admit that we have built a new building on the site of 
the old one, and propose to resume the business of grinding clean 
bones as aforesaid, but in such a manner, however, as to produce no 
offensive odors injurious to the health or comfort of the plaintiff and 
his family. 

IV. We deny the facts alleged in the fourth paragraph of the 
bill, and aver our information that, as matter of law, the plaintiff’s 
allegations of the depreciation of his real estate, so far as same con¬ 
sists of vacant land, is immaterial. 

V. We admit that about the time we began to replace the build¬ 
ing destroyed by fire as aforesaid, the plaintiff requested us to desist 
from so doing, and that we refused to comply with his request, and 
responded that we proposed to rebuild said building and resume our 
operations, not, however, in any spirit of vindictiveness, nor until 
we had satisfied ourselves that our said operations were entirely 
harmless to the plaintiff, and had received the assurances of our 
nearer neighbors that said business was no> annoyance to them. 

VI. We admit the proposed use of the machinery and equip¬ 
ments used in the old building destroyed by fire, as charged in the 
sixth paragraph, but we deny that our proposed business cannot or 
will not be operated without producing offensive odors. 

VII. We deny each and every of the facts charged in the seventh 
paragraph of the bill, as well as any inferences, deducible therefrom, 
that the continuation of our said business will in any way injure the 
health or comfort of plaintiff or his family, or affect the value of his 
real estate. 

VIII. We also deny the facts charged in the eighth paragraph 
of the bill. 

All of which matters and things we are ready and willing to aver, 
maintain and prove, as this Honorable Court may direct, and humbly 
pray to be hence dismissed, with our reasonable costs, in this behalf 
most wrongfully sustained. 


50 


PRACTICE AND FORMS OF DAW AND EQUITY. 


Luzerne: County, ss. : 

Thomas W. Evans and Henry W. Evans, being duly sworn, say 
that the facts set forth in the above answer, so far as the same are 
stated of their own knowledge, are true, and, as far as stated on in¬ 
formation and belief, they verily believe them to be true. 

Henry W. Evans, 
Thomas W. Evans. 

Sworn and subscribed before me 
this 2d day of June, 1900. 

Thad. M. ConniFF, 

Justice of the Peace. 

Replication and Structure of Same. Reply of plaintiff, in mat¬ 
ters of fact, to defendants’ answer. It serves the purpose of a plea 
in an action at law, viz., produces the issue of fact to be determined 
in the trial of the case. The usual replication is as follows: “The 
plaintiff joins issue on the matters alleged in the answer.” 

Decree. The judgment or sentence of a court of equity. 

Form of Decree. 

Now, 20th day of July, 1900, this cause having come on to be 
heard on motion for special injunction, and having been argued by 
counsel, it is ordered that, upon security being given in the sum of 
twenty-five hundred dollars, an injunction issue restraining the de¬ 
fendants, until further order, from operating the factory or mill 
described in the bill, in such a manner as to produce offensive odors 
injurious to the health or comfort of the plaintiff and his family. 

Charles E. Rice, 

President Judge. 

Bond Given by Plaintiff in Conformity to the 
Foregoing Decree. 

Know All Men By These Presents, That we, Robert C. 
Mitchell, Wm. McCulloch and G. W. Mitchell, are held and firmly 
bound unto Thomas Evans and Henry Evans, doing business in the 
firm name of Evans Brothers, hereinafter called the obligees, in the 



PRACTICE AND FORMS OF LAW AND EQUITY. 


51 


sum of twenty-five hundred dollars, lawful money of the United 
States of America, to be paid unto the said obligees, their certain 
attorney, executors, administrators or assigns, to which payment, 
well and truly to be made, we do bind ourselves, our heirs, execu¬ 
tors and administrators, firmly by these presents. 

Sealed with our seals, and dated the 20th day of July, in the year 
of our Lord one thousand and nine hundred. 

Whereas, an injunction has been granted at the instance of the 
said Robert C. Mitchell, against the said obligees, to No. 4, 

Term, 1900, in the Court of Common Pleas of Luzerne County, Sit¬ 
ting in Equity. 

Now, the condition of this obligation is such that if the said ob¬ 
ligors shall indemnify the obligees against all damages which may 
be done to them by reason of said injunction, then this obligation 
shall be void, otherwise to remain in full force and virtue. 

Witness our hands and seals the day and year aforesaid. 

R. C. Mitchell (Seal). 

Wm. McCulloch (Seal). 

G. W. Mitchell (Seal). 

Signed, sealed and delivered in J 
the presence of J 

C. H. Johnson. 

Injunction. A prohibitory writ, issued by the authority of, and 
generally under the seal of a court of equity, to restrain one or more 
of the parties, to a suit or proceeding in equity, from doing or per¬ 
mitting his servants or others who are under his control, to do an 
act which is deemed to be unjust or inequitable so far as regards the 
rights of some other party or parties to such suit or proceeding. 

Form of Injunction. 

Luzerne County, ss. 

The Commonwealth of Pennsylvania. 

(Seal.) 

To Thomas Evans and Henry Evans, 
doing business as Evans Brothers. 

Agents, workmen, laborers and servants. 

Greeting: 

Whereas, It hath been represented to us in our Court of Com¬ 
mon Pleas, Sitting in Equity for the County of Luzerne aforesaid, 


52 


practice: and forms of daw and equity. 


in a certain cause there pending, wherein Robert C. Mitchell is com¬ 
plainant, and you, Thomas Evans and Henry Evans, asi Evans 
Brothers, are defendants, on the part of the said complainant, that 
he has lately exhibited his Bill of Complaint in our said Court of 
Common Pleas, Sitting in Equity, against you, the said defendants, 
praying to be relieved, touching the matter therein contained, and 
that thereupon motion for injunction, and hearing thereof, and upon 
said complainant filing a bond in the sum of twenty-five hundred dol¬ 
lars, with surety approved by the court, as required by the Acts of 
Assembly in such case made and provided, it was ordered that a pre¬ 
liminary injunction issue, pursuant to the prayer of the said bill, to 
restrain you, the said defendants, until further order, from; oper¬ 
ating the fertilizer factory or mill owned by you, and situated in the 
village of Plainsville, this county, in such a manner as to produce 
offensive odors injurious to the health or comfort of the said Robert 
C. Mitchell and his family. 

We, therefore, in consideration of the premises aforesaid, do 
strictly command and enjoin you, the said defendants, your agents, 
workmen, laborers and servants, and all and every one of you, that 
you do from henceforth altogether absolutely desist from operating 
the fertilizer factory or mill owned by you, and situated in the vil¬ 
lage of Plainsville, this county, in such a manner as to produce of¬ 
fensive odors injurious to the health or comfort of the said Robert 
C. Mitchell and his family, until the said court shall make other 
order to the contrary. 

Witness, the Honorable Charles E. Rice, President Judge of said 
court, at Wilkes-Barre, this day , in. the year of 

our Lord 1900. Christopher Wren, 

Prothonotary. 

Terms of Court of Common Pleas. 

A term of court signifies the time during which the court sits for 
the transaction of regular business, and the session begins when the 
court convenes for the term, and continues until final adjournment, 
either before or at the expiration of the term. 

In each judicial district the law requires not less than four ses¬ 
sions each year, but this number may be increased by order of court. 
The time of each is ascertained by using the name of the month and 
year in which the term begins. For example, a term beginning in 
May, 1903, is called May Term, 1903. To indicate the order in 



PRACTICE AND FORMS OF LAW AND EQUITY. 


53 


which proceedings are begun in any one term, a number is assigned 
to each. To illustrate, the first proceeding entered after the end¬ 
ing of May Term, 1903, is called No. 1, May Term, 1903. This 
number is increased by the addition of one, every time a new pro¬ 
ceeding is begun, until the end of the term. Hence, if prior to the 
entry of the last proceeding 500 have been entered, the last proceed¬ 
ing will be numbered 501. 


54 


practice: and forms of law and equity. 


ACTIONS IN THE COURT OF COMMON PLEAS. 

Actions, such as are within the jurisdiction of the Court of Com¬ 
mon Pleas, are proceedings by which one party prosecutes another 
for the enforcement or protection of a right, the redress or preven¬ 
tion of a wrong. 

Parties to Actions. The party by whom the action is brought 
is called plaintiff, and the party against whom the action is brought 
is called defendant. 

Kinds of Action. In respect to their objects, actions are divided 
into personal, real and mixed actions. 

Personal Actions. 

Are those brought to recover debts, personal chattels or damages. 

Classes of Personal Actions. In respect to the causes of per¬ 
sonal actions, they are divided into Actions Ex Contractu and Ex 
Delicto. 

Actions Ex Contractu. Are such as are brought to recover 
moneys due upon contracts and agreements. 

Actions Ex Delicto. Are such as are brought to recover dam¬ 
ages for tort to the person or property of the plaintiff. A tort is a 
legal wrong committed upon the person or property independent of 
contract. 

Name of Action Ex Contractu. Is assumpsit, and in this form 
of action all debts due upon goods, agreements, book accounts, notes, 
bonds, etc., are recoverable. 

Names of Actions Ex Delicto. Are trespass and replevin. The 
former lies to recover damages for injuries to the person, or to the 
personal or real property of another, and for the recovery of dam¬ 
ages for the wrongful conversion of personal property. The latter 
is brought to recover possession of personal property unlawfully 
taken or detained. 


practice: and forms of law and equity. 


55 


Real Actions. 

Are those brought for the specific recovery of lands or other 
realty. 

Names of Real Actions. Are dower, partition and ejectment. 
Dower is an action by a widow to enforce her right to dower. Par¬ 
tition is an action to compel the division of lands held by joint ten¬ 
ants, co-parceners,' or tenants in common into distinct portions, so 
that they may own them in severalty. Ejectment lies for the recov¬ 
ery of the possession of lands. 

Mixed Actions. 

Are brought for the recovery of lands, together with damages 
for the wrongful detention and use of same. 


56 


practice: AND FORMS OF DAW AND EQUITY. 


PROCEEDINGS IN ACTIONS. 

Praecipe. Is an order, signed by the attorney for the plaintiff, 
addressed to the prothonotary, directing him to issue a particular 
writ. This order is the first act required of the plaintiff in the com¬ 
mencement of his action, whether personal, real or mixed. 

# 

Form of Praecipe in Assumpsit. 


John W. Jones 
vs. 

Patrick F. Conroy. 


Sir :— 


In the Court of Common Pleas 
of Luzerne County. 


Issue summons in assumpsit. Returnable at next term. 


D. A. Fell, 
Attorney for Plaintiff. 

To Brinton Jackson, Esq., Feb. 17 , 1903 . 

Prothonotary. 


PRACTICE AND FORMS OF UW AND EQUITY. 


57 


After properly folding the sheet on which this order is written, 
indorsement should be placed thereon in the following form: 


No. 1 , February Term, 1903. 


JOHN W. JONES 

YS. 

PATRICK F. CONROY. 


Praecipe. 


D. A. Feed, 
Attorney for Plaintiff. 



58 


PRACTICE AND FORMS OF LAW AND EQUITY. 


Form of Praecipe in Trespass. 


John Mather | j n the Court of Common Pleas 

vs * f of Bradford County. 

Wallace Tuttle. J 

Sir :— ' 

Issue summons in an action of trespass. Returnable at 

next term. 

Edward Overton, 
Attorney for Plaintiff. 
February 17, 1903. 

To Benjamin F. Peck, Esq., 

Prothonotary. 


Form of Praecipe in Replevin. 


David Johnson 
vs. 

Arnold Jenkins. 


In the Court of Common Pleas 
of Adams Countv. 


Sir:— 


Issue writ of replevin for one horse and two wagons of 
the value of one thousand dollars. Returnable at next term. 

Thomas Smith, 

Attorney for Plaintiff. 
February 17, 1903. 

To Daniel White, Esq., 

Prothonotarv. 



PRACTICE AND FORMS OF LAW AND EQUITY. 


59 


With the last above praecipe the plaintiff is required to file with 
the prothonotary a Replevin Bond, the form of same being as follows : 

David Johnson ) 


In the Court of Common Pleas 
of Adams County. 


vs. 

Arnold Jenkins. 


Know All Men By These Presents, That we, David Johnson 
and Samuel White, both of Gettysburg, Adams County, Pennsyl¬ 
vania, are held and firmly bound unto the Commonwealth of Penn¬ 
sylvania, in the just and full sum of two thousand dollars, lawful 
money of the United States, to> be paid to the said Commonwealth 
for the use of the defendant and other persons legally entitled 
thereto, to which payment well and truly to be made and done, we 
do bind ourselves, and each of us, and each of our heirs, executors, 
administrators, and every of them, jointly and severally, by these 
presents. 

Sealed with our seals and dated the first day of October, A. D. 


1902. 


Whereas, the above bounden David Johnson, having obtained a 
certain writ of replevin, issued out of the Court of Common Pleas 
of the said County of Adams, tested at Gettysburg, aforesaid, the 
first day of October, 1902, against Arnold Jenkins, of the said 
county, commanding the sheriff of said county that he should replevy 
and cause to be delivered unto the said David Johnson, one horse 
and two wagons, altogether of the value of one thousand dollars. 

Now, the condition of this obligation is such that if the above 
bounden David Johnson shall fail to maintain his title to said goods 
and chattels, he shall pay to the party thereunto entitled the value of 
said goods and chattels, and all legal costs, fees and damages which 
the defendant, or other persons to whom such goods and chattels so 
replevied belong, may sustain by reason of the issuance of such writ 
of replevin, then this bond to remain in full force and virtue, other¬ 
wise to be void and none effect. 

Signed, sealed and delivered \ 

in the presence of f David Johnson (Seal). 



(Bond of defendant, see writ of replevin.) 


60 


practice; and forms of law AND EQUITY. 


The plaintiff is also required to file with his praecipe ordering the 
issue of a writ of replevin, an affidavit of the value of the personal 
property named in the praecipe, of which said affidavit following is 
the form : 


David Johnson 
vs. 

Arnold Jenkins. 


In the Court of Common Pleas 
of Adams County. 


Adams County, ss. : 

David Johnson, the plaintiff above named, being duly sworn, says 
that the value of the goods and chattels named in his praecipe and 
declaration in this case is one thousand dollars, as ascertained by the 
cost to the defendant of replacing the said goods and chattels should 
the issue in this action be decided in his favor. 


Sworn and subscribed before me 
the 1st May, 1907. 

Josh Billings, Prothonotary. 


David Johnson. 


Form of Praecipe in Dower. 


Martha Nicholson 
vs. 

Jacob Hemingway. 


In the Court of Common Pleas 
of Lackawanna County. 


Sir :— 


Issue writ of dower unde nihil habet commanding Jacob 
Hemingway, justly and without-delay, he render to Martha Nichol¬ 
son, widow, who was the wife of Peter Nicholson, her reasonable 
dower which falleth to her out of the freehold which was of the said 
Peter Nicholson, late her husband, in the city of Scranton, whereof 
she has nothing as she says. Returnable at next term. 

Geo. S. Horn, 

Attorney for Plaintiff. 
February 17, 1903. 

To Thomas Morgan, Esq., 

Prothonotary. 


PRACTICE AND FORMS OF DAW AND EQUITY. 


61 


Form of Praecipe in Partition. 


In the Court of Common Pleas 
of Luzerne County. 


partition to answer the plaintiff of a 
plea wherefore, whereas the said plaintiff and the said defendants 
together and undivided hold a certain messuage, all that certain lot 
of land situated in the Borough of Plymouth, Luzerne County, Pa., 
bounded and described as follows, viz: Beginning at the southwest 
corner of lot No. 5, sold to Thos. James by D. Gardner and wife, 
on the west side of Gardner Street, thence along said line of lot No. 
5, south sixty degrees and four minutes west 126 feet to land of 
Samuel Wadhams, deceased; thence along said Wadhams’ land 
south 29 degrees 20 minutes, east 50 feet to comer of lot No. 23, 
owned by Benjamin Badman; thence along line of said lot No. 3, 
north 60 degrees and 40 minutes, east 126 feet to a corner on the 
west side of said Gardner Street, and thence along west side of said 
Gardner Street, north 29 degrees and 20 minutes, west 50 feet to 
the place of beginning, and containing 6,300 square feet of land, 
more or less; of which they, the said defendants, partition thereof 
between them, according to the laws and customs of the Common¬ 
wealth of Pennsylvania, to be made do' gainsay, and the same to be 
done do not permit, unjustly and contrary to the same laws and cus¬ 
toms. Returnable at next term. 


Chas. Vander Vort 
vs. 

Frank Argust, 

Matieda Perry, 

Thos. Argust, 

Geo. Argust. 

Sir :— 

Issue summons in 


To Brinton Jackson, Esq., 

Prothonotary. 


John H. Dando, 

Attorney for Plaintiff. 
February 17, 1903. 


62 


practice: and forms of taw and FQU1TY. 


Form of Praecipe in Ejectment. 

H. P. Blackman J j n c our t of Common Pleas 

7/S V 

^ _ ‘ f of Luzerne County. 

Peter White. j 

Sir :— 

Issue summons in ejectment against defendant, to appear 
and answer to certain complaint made by H. P. Blackman, that he, 
the said Peter White, now has in his actual possession a lot of 
ground, situated in the Township of Hanover, Luzerne County, Pa., 
bounded and described as follows, to wit: Beginning at a corner of 
Keith Street, in line of lot owned by Jacob Hardware, thence south 
43 degrees and 23 minutes west 103 feet to a corner of an alley 10 
feet wide; thence along said alley 100 feet to a corner on an alley 
10 feet wide; thence north 43 degrees and 23 minutes east 100 feet 
to a corner on Division Street, and thence along Division Street 
about 103 feet to the place of beginning; the right of possession or 
title to which he, the said H. P. Blackman, says is in him, and not 
in the said Peter White; all of which he, the said H. P. Blackman, 
avers he is prepared to prove, etc. Returnable at next term. 

P. H. Campbell, 

Attorney for Plaintiff. 

To Brinton Jackson, Esq., February 18, 1903. 

Prothonotary. 


With the last-above praecipe the plaintiff is required to file an 
affidavit, setting forth to the best of his knowledge, information and 
belief, who are all the claimants of the land in dispute. The form 
of this affidavit is as follows: 

H. P. Blackman 4 In the Court of Common Pleas 

vs. > of Luzerne County. 

Peter White. J No 467, April Term, 1903. 

Luzerne County, ss. : 

H. P. Blackman, the above-named plaintiff, being duly sworn, 
says, to the best of his knowledge, information and belief, that the 


practice: and forms of law and e:quity. 


63 


names and residences of claimants of the land described in the plain¬ 
tiff’s praecipe, other than the parties to this action, are T. J. Jackson 
and Abram S. Hewitt, both of the Borough of Nanticoke, in said 
county. 


H. P. Blackman. 


Sworn and subscribed before me ) 
this 15th March, 1905. j 

John P. Pollock, Alderman. 

My commission expires the first day of May, 1910. 


64 


practice: and forms of daw AND EQUITY. 


WRITS ORDERED IN SAID PRAECIPES. 

The prothonotary, in obedience to the praecipe, is required to 
issue the writ mentioned in it, and thereupon it is delivered to the 
sheriff for execution. Following are copies of the writs required by 
each of the foregoing praecipes, respectively: 


Summons in Assumpsit. 

Luzerne County, ss. : 

The Commonweaeth of Pennsylvania. 

To the Sheriff of said County, Greeting: 
We command you that you summon Philander Hol¬ 
comb SO' that he be and appear before our Court of 
Common Pleas, to be holden at Wilkes-Barre, in and 
for said County, on the first day of June next, there 
to answer Thomas Jefferson of a plea of assumpsit, and have you 
then and there this writ. 

Witness the Honorable John Lynch, President Judge of our said 
Court, at Wilkes-Barre, aforesaid, the 15th day of May, A. D. one 
thousand nine hundred and seven. 

Thomas W. Templeton, 

Prothonotary. 



PRACTICE AND FORMS OF LAW AND EQUITY. 


65 


Summons in Trespass. 


Luzerne County, ss. : 

The Commonwealth of Pennsylvania. 

To the Sheriff of said County, Greeting : 
We command you that you summon Aaron Burr so 
that he be and appear before our Court of Common 
Pleas, to be holden at Wilkes-Barre, in and for said 
County, on the first day of June next, there to answer 
Alexander Hamilton of a plea of trespass, and have you then and 
there this writ. 

Witness the Honorable John Lynch, President Judge of our said 
Court, at Wilkes-Barre, aforesaid, the 15th day of May, A. D. one 
thousand nine hundred and seven. 

James Monroe, 

Prothonotary. 



Writ of Replevin. 


Luzerne County, ss. 


The Commonwealth of Pennsylvania. 

To the Sheriff of said County, Greeting : 
Whereas, Andrew Jackson has executed and filed 
the required bond, with sureties, in the sum of one 
thousand dollars, conditioned that if he, the said An¬ 
drew Jackson, shall fail to maintain his title to the 
goods and chattels hereafter recited, he shall pay to the party en¬ 
titled thereto the value thereof, together with legal costs, fees and 
damages which the defendant or other person to whom such goods 
and chattels belong may sustain by reason of this writ. 

Now we command you, that to the said Andrew Jackson you 
deliver the following goods and chattels: 

(Here the goods are itemized) 

of the value of five hundred dollars, which to be replevied and deliv¬ 
ered you cause, and that you summon and put by safe pledges the 


66 


PRACTICE AND FORMS OF LAW AND EQUITY. 


said John C. Calhoun, or any other person in whose possession the 
goods and chattels may be found, so that he be and appear before 
our judges at Wilkes-Barre, at our County Court of Common Pleas, 
there to be held for the County of Luzerne, on the first Monday of 
June next, to answer the said Andrew Jackson of a plea wherefore 
he took the goods and chattels aforesaid, and the same unjustly de¬ 
tains against sureties and pledges, etc. And have then and there 
this writ. 

Witness the Honorable Isaac G. Gordon, Esq., President Judge 
of our said Court, at Wilkes-Barre, the 15th day of May, A. D. 1906. 

Roger B. Taney, 

Prothonotary. 


By giving a claim property bond the defendant can, by virtue 
thereof, retain possession of the goods and chattels mentioned in this 
writ until final judgment is entered in the action. Following is the 
form of such a bond : 

Andrew Jackson \ In the Court of Common Pleas 
I of the County of Luzerne, of 

VSm / October Term, A. D. 1901. 

John C. Calhoun. j No. 465. 

Know All Men By These Presents, That we, John C. Cal¬ 
houn and Robert E. Lee, of the City of Wilkes-Barre, in said county, 
are held and firmly bound unto the Commonwealth of Pennsylvania 
for the use of the parties interested, in the sum of one thousand dol¬ 
lars, lawful money of the United States, to be paid unto the Com¬ 
monwealth of Pennsylvania for the use of the parties interested, their 
certain attorney, executors, administrators or assigns; to which pay¬ 
ment well and truly to be made and done, we do bind ourselves and 
each of us, our and each of our heirs, executors and administrators, 
and every of them, jointly and severally, firmly by these presents. 

Sealed with our seals. Dated this 21st day of September, A. D. 
1901. 


PRACTICE) AND FORMS OF LAW AND EQUITY. 


67 


Whereas, a certain Andrew Jackson has obtained a certain writ 
of replevin, issued out of the Court of Common Pleas of said county, 
tested at Wilkes-Barre, Pa., the 19th day of September, A. D. 1901, 
against the above bounden John C. Calhoun, of the county afore¬ 
said, commanding the said sheriff that he should replevy and cause 
to be delivered unto the said Andrew Jackson one horse of the value 
of five hundred dollars. 

And, whereas, the said John C. Calhoun hath claimed property 
in the said goods and chattels. 

Now the condition of this obligation is such, that if the above 
bounden John C. Calhoun shall fail td maintain his title to such 
goods or chattels, he shall pay to the party thereunto entitled the 
value of said goods and chattels, and all legal costs, fees and dam¬ 
ages which the defendant or other persons to whom such goods or 
chattels so replevied belong, may sustain by reason of the issuance 
of such writ of replevin, then this bond to remain in full force and 
virtue, otherwise to be void and none effect. 

John C. Calhoun (Seal). 



Robert E. Lee (Seal). 

Jefferson Davis (Seal). 


(38 


practice: and forms of law and equity. 


No. - 


Term, 190 


versus 


DEFENDANT’S BOND IN REPLEVIN. 


Defendant’s Attorney. 



practice: and forms of daw and equity. 


69 


Writ of Dower. 

Luzerne County, ss. : 

The: Commonwealth of Pennsylvania. 

To the Sheriff of said County, Greeting: 
Command Edward Sturges that justly and without 
delay he render to Olive Nichols, widow, who was the 
wife of John Nichols, now deceased, the reasonable 
dower which falleth to her of the freehold which was 
of the said John Nichols, her late husband, in the City of Wilkes- 
Barre, said county, whereof she has nothing, as she says, and where¬ 
of she complains that the said Edward Sturges deforces her. And 
unless he shall do so, and if the said Olive Nichol^ shall give you 
security for prosecuting her claim with effect, then summon by good 
summoners the aforesaid Edward Sturges that he be and appear be¬ 
fore our judges at Wilkes-Barre, at our County Court of Common 
Pleas, there to be held the first Monday of June next, to show where¬ 
fore he will not. And have you then and there the names of those 
summoners and this writ. 

Witness the Honorable Garrick M. Harding, President Judge of 
said Court, at Wilkes-Barre, this 1st day of May, in the year of our 
Lord one thousand nine hundred and seven. 

M. J. Philbin, 

Prothonotary. 

Summons in Partition. 

Luzerne County, ss. : 

The Commonwealth of Pennsylvania. 

To the Sheriff of said County, Greeting : 
If John Smith, make you secure of prosecuting his 
claim, then we command you, that, by good and lawful 
summoners you summon Thomas Smith, Peter Smith 
and Mary Jane Smith, late of your county, so that they 
be and appear before our judge, at Wilkes-Barre, at our County 
Court of Common Pleas, there to be held the first Monday of June 
next, to show wherefore, whereas the said John Smith, plaintiff, and 




70 


practice; and forms of law AND EQUITY. 


Thomas Smith, Peter Smith and Mary Jane Smith, defendants, hold 
together and undivided a certain tract of land, situate in the Second 
Ward of the City of Wilkes-Barre, Luzerne County, Pennsylvania, 
bounded and described as follows, to wit: Beginning at a point on 
the west side of Pearl Street, one hundred feet from the southwest¬ 
erly corner of Scott and Pearl Streets; thence in a westerly direction 
and in a line parallel with said Scott Street, to the line of the Beau¬ 
mont lands; thence along said line in a southwesterly direction sev¬ 
enteen and three-tenths feet to a point; thence in a line towards Pearl 
Street, so extended that it strikes Pearl Street ninety-seven feet from 
the southwest corner of Pearl and Scott Streets aforesaid, and thence 
along Pearl Street three feet to' the place of beginning. Being part 
of lot No. 1, on map or plan made by Seynore Butler, Esq., and re¬ 
corded in the office for recording deeds, etc., in and for the County 
of Luzerne, in Deed Book No. 139, pages 59, etc., the same the said 
Thomas Smith, Peter Smith and Maiy Jane Smith partition thereof 
between them to be made (according to> the laws and customs of this 
Commonwealth in such case made and provided) do gainsay and 
the same to be done do not permit very unjustly and against the 
same laws and customs. And have you then and there this writ and 
the names of these summoners. 

Witness the Hon. Stanley Woodward, President Judge of said 
Court, at Wilkes-Barre, this first day of May, in the year of our 
Lord one thousand nine hundred and seven. 


Peter Seibee, 

Prothonotary. 


practice and forms oe law and equity. 


71 


Summons in Ejectment. 


Luzerne County, ss. : 

The Commonwealth of Pennsylvania. 

To the Sheriff of said County, Greeting: 
You are hereby commanded that you summon Pierce 
Butler to appear before the Judges of the Court of 
Common Pleas, in and for said county, to be holden at 
Wilkes-Barre, on the first day of June next, then and 
there to answer to a certain complaint made by James Wilson, that 
the said Pierce Butler now has in his actual possession a tract of 
land situate in the City of Pittston, Luzerne County, Pennsylvania, 
bounded and described as follows, to wit: (This is followed with a 
full description of the land for the recovery of which this' action was 
brought.) The right of possession or title to which the said plaintiff 
says is in him and not in the said defendant. All of which the said 
plaintiff avers he is prepared to prove before said court. Hereof 
fail not. 

Witness the Honorable Edmund L. Dana, President Judge of 
our said Court, at Wilkes-Barre, the first day of June, A. D. one 
thousand nine hundred and seven. 



George Washington, 
Prothonotary. 


72 


practice: and forms of law and equity. 


The indorsement on the summons in the action of assumpsit, and 
on the summons in the action of trespass should be as follows : 


No.- Term 190 

JOHN W. JONES 
vs. 

PATRICK F. CONROY. 

SUMMONS. 

Sheriff’s Costs. 

» 

Docket Entry---$- 

Travel-- 

Service -.-- 

Copies--:- 

Total__ 

Paid by_ 

_Sheriff. 

D. A. Fell, Attorney. 


















PRACTICE AND FORMS OF LAW AND EQUITY. 


73 


Indorsement on the summons in the action of replevin should be 
follows: 


No. 


Term 190 


DAVID JOHNSON 


vs. 


ARNOLD JENKINS. 


WRIT OF REPLEVIN. 


Thomas Smith, 

Plaintiff's Attorney. 




74 


practice: and forms of daw AND EQUITY. 


Indorsement on writ of dower should be as follows: 


No. 


Term 1906. 


MARTHA NICHOLSON 


vs. 


JACOB HEMINGWAY. 


WRIT OF DOWER. 


Geo. S. Horn, 

Attorney. 






PRACTICE AND FORMS OF DAW AND EQUITY. 


Indorsement on summons in partition should be as follows 


No.- Term 190 


CHARLES VANDER VORT 

vs. 

FRANK ARGUST, MATILDA PERRY, 
THOMAS ARGUST and GEO. 
ARGUST. 


SUMMONS IN PARTITION. 


John H. Dando, 
Attorney. 




76 


practice and forms of law and equity. 


Indorsement of summons in ejectment: 


No. ■ 


Term 190 


H. P. BLACKMAN 
vs. 

PETER WHITE. 


SUMMONS IN EJECTMENT. 

Sheriff’s Costs. 

Docket Entry_$-- 

Travel __ 

Service __ 

Copies___ 

$ - - 

Paid by_ 

_Sheriff. 

P. H. Campbeee, 

Attorney. 














PRACTICE AND FORMS OF LAW AND EQUITY. 


77 


All these writs the sheriff is required to serve upon the defend¬ 
ants. The methods of service are provided by statute, and consist of 
a great variety. On each writ it is his duty to make a return of ser¬ 
vice, indicating therein the method he used. As an example, here¬ 
under is furnished a return of service of a summons in an action of 
assumpsit upon the defendant personally. 


To the Honorable Judges Within Named: 

I hereby certify and return that I served this writ personally on 
defendant, Benedict Arnold, on the 15th day of May, 1906, by hand¬ 
ing him a true and attested copy thereof. 


So answers, 


Jonathan R. Davis, 

Sheriff. 


Sheriff. 


The sheriff is, like the prothonotary, a county officer, elected by 
the people. His duties principally are: To preserve the public peace 
within his county, arrest malefactors, summon jurors, levy execu¬ 
tions, hold judicial sales, serve writs and other processes, and per¬ 
form various other ministerial duties in aid of the courts of record. 


Dockets in Office of Sheriff. 

Summons Docket. Contains record of all writs requiring the 
persons against whom they are issued to appear in court, and make 
answer to complaints, on the part of persons at whose instance the 
writs are issued by the prothonotary. This record consists of the 
names of the parties to the action, and number and term of each case. 

Execution Docket. The record in this book is the same as in 
that of the same name kept in the prothonotary’s office. 

Sheriff’s Sales Docket. In this book are records of all sales of 
real estate made by the sheriff pursuant to any execution process. It 
consists of the names of the parties, plaintiff and defendant, descrip¬ 
tion of the property, when sales were had, and the prices paid by the 
purchasers at said sales. 

Jurors’ Docket. In this are entered the names, residences and 
occupations of all persons chosen to act as jurors in any of the courts 
in which jury trials are had. 


78 


PRACTICE AND EORMS OE LAW AND EQUITY 


DECLARATIONS OR STATEMENTS. 

After entry of praecipe the next step required of the plaintiff to 
complete a presentation to the court of the complaint in his action, is 
the filing of a declaration or statement in the prothonotary’s office. 

This paper is a formal and methodical specification of the facts 
and circumstances constituting the plaintiff’s cause of action. In an 
action of assumpsit the declaration must be accompanied by copies 
of all notes, contracts, book entries, or a particular reference to the 
records of any court within the county in which the action is brought, 
upon which the plaintiff’s claim is founded. Following are examples 
of statements used in the different forms of action. 


In the Court of Common Pleas 
of Lancaster County. 

No. 25, May Term, 1903. 

The plaintiff, George Davidson, claims of the defendant, Henry 
King, the sum of five hundred dollars, with interest thereon from 
the first day of January, 1902, which is justly due and payable to the 
plaintiff by the defendant upon the cause of action whereof the fol¬ 
lowing is a statement. 

The defendant, on the first day of November, 1901, at the county 
aforesaid, made his promissory note, whereof the following is a 


copy: 

$500.00. Philadelphia, Pa., Nov. 1, 1901. 

Two months_after date I promise to pay to the 

order of_William Burns,_ 

five hundred_dollars. 


At First National Bank. Without defalcation for value received. 


Declarations in Assumpsit. 

George Davidson \ 

vs. 

Henry King. ) 


(Signed) 


Henry King. 






PRACTICE AND FORMS OF LAW AND EQUITY - . 


79 


And having delivered said promissory note to the plaintiff, the 
defendant became liable for the payment of the same, according to 
the tenor and effect thereof. 

The said promissory note was duly presented for payment at the 
said First National Bank, and payment of the same duly demanded 
of said bank according to the tenor of said note ; but payment thereof 
was refused, and the defendant has always refused to pay the amount 
of said note, or any part thereof. 

Frank C. Sturges, 

Attorney for Plaintiff. 

This declaration, and all others following, should be indorsed 
and folded same as first form of praecipe. 


Frank Smith \ In the Court of Common Pleas 

( of Philadelphia County. 

George Welles ) No. 9, April Term, 1903. 

The plaintiff, Frank Smith, claims of the defendant, George 
Welles, the sum of one thousand dollars, with interest thereon from 
the first day of June, 1901, which is justly due and payable to the 
plaintiff by the defendant upon the cause of action whereof the fol¬ 
lowing is a statement. 

George Welles, the defendant, to wit, on the first day of April, 
1901, at the county aforesaid, made and delivered to Edmund Fos¬ 
ter his promissory note, whereof the following is a copy: 


$ 1 , 000 . 00 . 

Two months after date. 

to the order of_ 

thousand_ 

tion_ 


Philadelphia, Pa., April 1, 1901. 

_I promise to pay 

_Edmund Foster, one 

_dollars, without defalca- 

for value received. 

George Welles. 


And the said Edmund Foster, after the making of the said note, 
and before payment of the said sum of money therein specified, to 
wit, on the first day of May, 1901, at the county aforesaid, indorsed 
and delivered said note to the plaintiff. 






80 


practice: and forms of daw and fquity. 


When the said note became due, to wit, on the first day of June, 
1901, the said note was duly presented for payment to the said 
George Welles, and payment of the sum of money specified in the 
said note was then and there duly requested; but neither the said 
George Welles, nor any person or persons on his behalf, did or 
would then, or at any time before or afterwards, pay the said sum 
of money, or any part thereof, but wholly neglected and refused so 
to do, all of which several premises the defendant, to> wit, on the day 
and year last aforesaid, at the county aforesaid, had due notice, by 
means whereof the defendant then and there became liable to pay to 
the plaintiff the said sum of money, but the defendant has failed to 
pay said sum or any part thereof. 

J. Howard Gfndffl, 

Attorney for Plaintiff. 

In the Court of Common Pleas 
of Allegheny County. 

No. 5, June Term, 1903. 

The plaintiff, Horatio Mills, claims of the defendant, the North 
American Insurance Co., the sum of five thousand dollars, with inter¬ 
est thereon from the 10th day of September, 1902, which is justly 
due and payable to the plaintiff by the defendant, upon cause of 
action whereof the following is a statement. 

The plaintiff, to wit, on the first day of March, 1902, executed 
and delivered to the plaintiff a policy of insurance in consideration 
of the sum of fifty dollars, paid by the plaintiff to the defendant on 
the first day of March, 1902, at Pittsburg, in the county aforesaid, 
the receipt whereof was in said policy of insurance, of which the fol¬ 
lowing is a copy: (Here insert copy of policy, with all conditions, 
etc.) 

The plaintiff avers that he has performed all things on his part 
to be performed, but the defendant on its part has broken its cov¬ 
enants to be performed, in this : That on the 10th day of September, 
1902, at the City of Pittsburg, the premises in said policy of insur¬ 
ance mentioned were destroyed by fire, which did not happen by anv 
causes to which the insurance undertaken by the said defendant did 
not apply, and that on the 10th day of September, 1902, the plaintiff 


Horatio Miffs 
vs. 

N. A. Insurance: Co. 


PRACTICE AND FORMS OF LAW AND EQUITY. 


81 


gave notice to the defendant of the fire and loss, and on the 20th day 
of the same month, in the said City of Pittsburg, did deliver to the 
defendant a particular account of the loss and damage, and also of 
the value of the premises insured, and when and how the fire orig¬ 
inated, to the best of his knowledge, to which said account and no¬ 
tice was annexed a certificate, under the hand and seal of a notary 
public, stating that he was acquainted with the character and cir¬ 
cumstances of the insurance, and that, without fraud, he had sus¬ 
tained a loss or damage upon the premises insured, to the sum of 
five thousand dollars, yet the defendant has not paid to the plaintiff 
the said sum of money, nor repaid nor reimbursed him for the loss 
sustained by the fire, nor any part thereof, although so requested, 
contrary to the form and effect of the said policy of insurance. 

D. L. & J. Q. CrEvELIng, 

Attorneys for Plaintiff. 

Feb. 19, 1903. 


Declarations in Actions of Trespass. 

Edward Loftus \ In the Court of Common Pleas 
f of Allegheny County. 

John E. Perkins. / No. 68, October Term, 1903. 

The plaintiff, Edward Eoftus, claims of the defendant, John E. 
Perkins, the sum of five thousand dollars, which is justly due and 
payable to the plaintiff by the defendant upon the cause of action, 
whereof the following is a statement. 

The defendant at the time hereinafter mentioned, was possessed 
of a certain property, with its appurtenances, situated in the Tenth 
Ward of the City of Pittsburg, on a certain street called Main Street, 
which is a public highway, and on the 19th day of October, 1902, 
the defendant wrongfully placed large quantities of materials, dirt 
and rubbish in the said street near to his property, and wrongfully 
and unjustly continued the same therein during the night time of 
the day aforesaid, without fixing or placing any light or signal near 
such dirt or rubbish to denote its position; in consequence of which 
said neglect and improper conduct of the defendant, a carriage of 
the plaintiff, with the plaintiff therein, was, on the night of the day 


82 


PRACTICE AND FORMS OF UW AND EQUITY. 


aforesaid, while passing along said highway, accidentally driven 
upon and against said dirt and rubbish, and was thereby overturned, 
by means whereof the plaintiff became greatly injured, bruised, cut 
and sick, to the damage of said plaintiff in the sum of five thousand 

dollars - R. W. Hall, 

Attorney for Plaintiff. 
Feb. 19, 1903. 


Robert P. Robinson 
vs. 

Thomas R. Peters. 


In the Court of Common Pleas 
of Clearfield County. 

No. 101, March Term, 1903. 


The plaintiff, Robert P. Robinson, claims of the defendant, 
Thomas R. Peters, the sum of three thousand dollars, which is justly 
due and payable to the plaintiff by the defendant upon the cause of 
action, whereof the following is a statement. 

The defendant, to wit, on the 5th day of August, 1902, to wit, 
at the county aforesaid, wrongfully kept a certain dog. The defend¬ 
ant then knew that the said dog was ferocious and mischievous, and 
used and accustomed to attack and bite mankind. And the said dog, 
so kept by the defendant, as aforesaid, then and there attacked and 
bit the plaintiff and greatly lacerated, hurt and wounded one of the 
legs of the plaintiff; and thereby the plaintiff then and there became 
sick, sore, lame and disordered, and so remained and continued for, 
to wit, one year then next following, during all which time he suf¬ 
fered and underwent great pain, and was thereby then and there 
hindered and prevented from transacting his affairs and business by 
him, during that time to be transacted; and also by means of the 
premises, the plaintiff was thereby then and there put to great ex¬ 
pense, costs and charges, in the whole amounting to the sum of, to 
wit, one thousand dollars, in and about endeavoring to be cured of 
the said wounds, sickness, soreness and lameness, so occasioned as 
aforesaid, and has been and is by means of the premises, otherwise 
greatly injured, to wit, at the county aforesaid, to the damage of 
the plaintiff in the sum of three thousand dollars. 

W. C. Arnoed, 

Attorney for Plaintiff. 

Feb. 19, 1903. 


PRACTICE AND EORMS OE UW AND EQUITY. 83 

C. D. Reiter \ In the Court of Common Pleas 

{ of Luzerne County. 

Lehigh VaeeEy R. R. Co. j No. 105, December Term, 1903. 

The plaintiff, C. D. Reiter, claims of the defendant, the Lehigh 
Valley Railroad Company, the sum of four thousand dollars, which 
is justly due and payable to the plaintiff. by the defendant upon the 
cause of action, whereof the following is a statement. 

The defendant is a corporation engaged in the business of carry¬ 
ing passengers for hire. On the 25th day of December, 1902, the 
plaintiff, having paid his fare, became a passenger upon a certain 
passenger railway car of the defendants, running upon the section 
of the line operated by defendant, to wit, between the City of Wilkes- 
Barre and the City of Pittston, both in the county aforesaid, said car 
being the property of and operated by the defendant. 

And whereupon the defendant undertook to safely carry the 
plaintiff for hire. 

Nevertheless, the said defendant in this respect, wholly disre¬ 
garding and neglecting-their duty, so carelessly and negligently oper¬ 
ated said car, that when the same was crossing Market Street, in the 
City of Wilkes-Barre, the said car upon which the plaintiff was a 
passenger, by reason of defendant’s negligence, collided with a cer¬ 
tain other car. 

By reason of said collision, due to neglect and carelessness of 
defendant, and total disregard of its duty to safely carry the plaintiff 
for hire as aforesaid, the said plaintiff has been injured in his spine 
and nerves, and has suffered great pain, and has been prevented from 
attending to and transacting his lawful business and affairs, to wit, 
from thence hitherto, and has been compelled to lay out and expend 
large sums of money for medicines and medical attendance, and has 
been otherwise greatly injured, to the plaintiff’s damage in the sum 
of four thousand dollars. 


James L. Lenahan, 

Attorney for Plaintiff. 
Feb. 19, 1903. 


84 


PRACTICE AND FORMS OE EAW AND EQUITY. 


Declaration in Replevin. 

David Johnson \ In the Court of Common Pleas 

I of Adams County. 

vs. \ 

Arnold Jenkins. ) No. 51, October Term, 1902. 


The plaintiff complains that the defendant did, on the 7th day 
of May, 1902, at Gettysburg, in the county aforesaid, unlawfully 
take and carry away one horse and two wagons of the value of one 
thousand dollars, and the same unlawfully detained against sure¬ 
ties, pledges, etc.; which said horse and wagons were then and there 
the property of the plaintiff, he having, on the second day of Jan¬ 
uary, 1902, acquired the ownership thereof by purchase from Eli 
Fisher, of said Gettysburg, who then and there delivered possession 
of the said horse and wagons to him, the said plaintiff; wherefore 
the said plaintiff saith that he has suffered injury and hath sustained 
damage in the sum of one thousand dollars, and, therefore, he brings 
this suit, etc. 


Thomas Smith, 

Attorney for Plaintiff . 


Adams County, ss. : 


David Johnson, the above named plaintiff, being duly sworn, 
says that the facts set forth in the foregoing statement or declara¬ 
tion are true. 


Sworn and subscribed before 
me 2nd October, 1902. 

Frank Boboeink, 

Prothonotary. 


David Johnson. 


Declaration in Dower. 

Martha Nicholson j In the Court of Common Pleas 
f of Lackawanna County. 

Jacob Hemingway. j No. 11, March Term, 1903. 

Martha Nicholson, the plaintiff above named, and who was the 
wife of James Nicholson, deceased, by her attorney, George S. Horn, 
demands against Jacob Hemingway the third part of all that certain 


PRACTICE AND FORMS OF TAW AND EQUITY. 


85 


messuage and lot of land, with the improvements thereon, situated 
in the City of Scranton, in the county aforesaid, bounded and de¬ 
scribed as follows, to wit: (Here give full description of the prop¬ 
erty), with the appurtenances, as the dower of the said Martha Nich¬ 
olson, of the endowment of the said James Nicholson, deceased, 
heretofore her husband, whereof she has nothing, etc. 

George S. Horn, 

Attorney for Plaintiff. 

Feb. 23, 1903. 


Declaration in Partition. 


Chas. Vander Vort 
vs. 

Frank Argust, 
Matieda Perry, 
Thos. Argust, 
George Argust. 


In the Court of Common Pleas 
of Luzerne County. 

No. 15, March Term, 1903. 


Frank Argust, Matilda Perry, Thomas Argust and George Ar¬ 
gust were summoned to answer Charles Vander Vort of a plea 
wherefore whereas the plaintiff and the said defendants, together 
and undivided, do hold the following-described land, with the ap¬ 
purtenances, situated in the Borough of Nanticoke, Luzerne 
County, Pennsylvania, bounded and described as follows: (Here 
give full description of the property), they, the said defend¬ 
ants, partition thereof, between them, according to the laws and 
customs of this Commonwealth, and the statutes in such cases 
made.and provided, deny, and unjustly permit not the same to be 
done, contrary to the laws and customs and statutes aforesaid. And 
thereupon, the said plaintiff, by his attorney, John H. Dando, says 
that whereas the said plaintiff and the said defendants, together and 
undivided, do hold the tenements aforesaid, with the appurtenances, 
whereof one equal part out of five equal parts, the whole into five 
equal parts to be divided, to him, the said plaintiff, Charles Vander 
Vort, and his heirs, it pertaineth to have; and the said other equal 
part, to wit, the whole of the said remaining part of the five equal 
parts to the said defendants, Frank Argust, Matilda Perry, Thos. 
Argust and George Argust, them and their heirs, it pertaineth to 
have; that is h> say, of the whole of said remaining last mentioned 


8 6 


practice: and forms of law and equity. 


part, one equal fourth part thereof, into four equal parts to be di¬ 
vided to the said Frank Argust and his heirs, it pertaineth to have; 
and one other equal fourth part thereof into four equal parts to be di¬ 
vided, to the said Matilda Perry and her heirs, it pertaineth to have; 
and one other equal fourth part of the same into four equal parts, 
to be divided to the said Thomas Argust and his heirs, it pertaineth 
to have; and one other equal fourth part of the same into four equal 
parts divided, to the said George Argust and his heirs, it pertaineth 
to have; to hold to them the said several parties, respectively, as 
aforesaid, in severalty, so that they, the said defendants and the said 
plaintiff, of the respective parts or pur-parts to them belonging and 
pertaining, of the lands and tenements and premises aforesaid, with 
the appurtenances, may severally apportion themselves, they the said 
defendants deny that partition be made between them according to 
the laws and customs of this Commonwealth, and the statutes in such 
case made and provided and unjustly permit not the same to be done 
contrary to the laws and customs and the statutes aforesaid. Where¬ 
upon the said plaintiff says that he is injured and has been dam¬ 
aged to the value of one thousand dollars, and, therefore, he brings 

this suit. T TT _ 

John H. Dando, 

Attorney for Plaintiff. 

Feb. 23, 1903. 

Declaration in Ejectment. 


H. P. Blackman j In the Court of Common Pleas 
^ ( of Luzerne County. 

Peter White. J No. 467, April Term, 1905. 

The plaintiff in this action complains that Peter White, the above 
named defendant, now has in his actual possession a lot of ground, 
situate in the Township of Hanover, Luzerne County, Pennsylvania, 
bounded and described as follows, to wit: Beginning at a corner oi 
Keith Street, in line of lot owned by Jacob Hardware, thence south 
43 degrees and 23 minutes west 103 feet to a corner of an alley 10 
feet wide; thence along said alley 100 feet to a corner on an alley 
10 feet wide; thence north 43 degrees and 23 minutes east 100 feet 
to a corner on Division Street, and thence along Division Street 
about 103 feet to the place of beginning; the title and right of pos- 


PRACTICE AND FORMS OF LAW AND EQUITY. 


87 


session to which he, the said H. P. Blackman, says is in him, and 
not in the said Peter White; all of which he, the said H. P. Black¬ 
man, avers he is prepared to prove, and hereunder presents an ab¬ 
stract of title under which he claims the said lot of ground and the 
right to the possession thereof. 

P. H. Campbeee, 

A ttorney for Plaintiff. 


Abstract of Plaintiff’s Title. 


Commonwealth of Penn'a 
to 

Benj. F. Butler. 


Patent dated 23d May, 1814. 

Consideration paid-$80.00. 

Recorded 27th day of May, 1814. 
Deed Book 15, page 29. 


Benj. F. Butler 
to 

George B. McClellan. 

Wm. Penn Kirkendall, 
Sheriff, 

to 

Winfield Scott. 


Deed dated 29th June, 1845. 

Consideration paid_$500.00. 

Recorded the 29th June, 1845. 
Deed Book 48, page 73. 

Deed dated 9th July, 1852. 
Acknowledged 12th July, 1852. 
Consideration_$700.00. 

Recorded in Shffs. D. B., No. 7, 
page 5. 


Land sold by the sheriff pursuant to writ of Fieri Facias, No. 25, 
June Term, 1852; tested at Wilkes-Barre, Pa., the 17th May, 1852, 
and issued upon judgment, Winfield Scott vs. George B. McClellan, 
No. 11, October Term, 1850. 


Winfield Scott 
to 

H. P. Blackman. 


Deed dated 25th November, 
1860. 

Consideration paid_$950.00. 

Recorded 9th December, 1860. 
Deed Book 64, page 325. 






88 


PRACTICE: and FORMS OF TAW AND EQUITY. 


APPEARANCE AND AFFIDAVIT OF DEFENCE. 

In the foregoing cases the plaintiffs have furnished all the infor¬ 
mation required to make it necessary for the defendants to answet 
their complaints. To avoid losing the privilege of resisting the de¬ 
mand of the plaintiff, the defendant must, first, enter an appearance. 
This is an act by which the defendant manifests his submission to 
the jurisdiction of the court, and is generally performed by causing 
either his own name or the name of his attorney to be written in the 
margin of the page of a docket in the prothonotary’s office, on which 
a record of the case against him is entered. In an action of assump¬ 
sit, in which the plaintiff has furnished a copy of his claim, the de¬ 
fendant must also file an affidavit of defence. This document is a 
written statement opposed, either in fact or law, or in both, to the 
plaintiff’s demand. The form of this affidavit is as follows: 

Edmund Foster j In the Court of Common Pleas 
[ of Philadelphia County. 

Chas. Hoecomb. j No. 9, April Term, 1903. 

Before me, L. A. Dymond, a notary public for the Common¬ 
wealth of Pennsylvania, residing at the City of Philadelphia, per¬ 
sonally appeared Chas. Holcomb, the defendant above named, who 
being duly sworn, doth say that he hath a just and legal defence 
to the whole of the plaintiff’s demand, the nature and character of 
which are as follows: 

The promissory note, of which a copy is furnished in the plain¬ 
tiff’s statement in this case, was given by the deponent to the payee 
thereof under circumstances and conditions as follows, viz: On the 
day of the date of said note, at said City of Philadelphia, Edmund 
Foster, the payee aforesaid, agreed to sell and deliver to the de¬ 
ponent, at his place of business, in the said city, on or before the 
first day of May, 1901, 2,000 bushels of potatoes for the sum of one 


PRACTICE AND FORMS OF DAW AND EQUITY. 


89 


thousand dollars. Thereupon, and at the request of the said Edmund 
Foster, the deponent gave him the said note, subject to these condi¬ 
tions, to wit: That he, the said Edmund Foster, should not have the 
right to negotiate or otherwise transfer said note until the delivery 
of the said potatoes, and that if the same were not delivered on the 
first day of May, 1901, the said note should be immediately returned 
to the deponent. To all of which said conditions, he, the said Ed¬ 
mund Foster, then and there agreed and assented, and of the exist¬ 
ence of which said conditions, and of their purport and meaning, the 
plaintiff then and there acquired full knowledge, he being present at 
the transaction and taking part therein as the friend of the said Ed¬ 
mund Foster. That the said potatoes were not delivered on the said 
first day of May, 1901, and the day following the deponent demanded 
of the said Edmund Foster that said note be returned to him in ac¬ 
cordance with the conditions aforesaid, and at the same time notified 
the said Edmund Foster that because of his failure to deliver the 
said potatoes at the time appointed, he was absolutely released from 
his agreement to buy the same, and that he would not allow nor ac-' 
cept delivery of the said potatoes at any time in the future, and that 
he has not since allowed nor accepted the delivery of the same. That 
he, the deponent, believes and expects to be able to prove the fore¬ 
going allegations of fact on the trial of the case. 



Chas. Holcomb. 


L. A. Dymond, Notary Public . 
My commission expires January 2, 1903. 


90 


practice: and forms of daw and equity. 


PLEAS. 

Before the trial of any action can occur the defendant must enter 
a plea. 

A Plea. Is a mode of presenting the defendant’s answer to the 
complaint of the plaintiff. There are two classes of pleas, viz, dila¬ 
tory and peremptory. 

Dilatory Pleas. Are pleas in abatement and to the jurisdiction 
of the court. The former avers, merely, some informality in the pro¬ 
ceedings of the action, and may, in almost every instance, be avoided 
.by amendments. The latter plea denies the jurisdiction of the court 
in which the action is pending. 

Peremptory Pleas. Are called pleas in bar, and in such a plea 
is set forth an answer, which, if found true, defeats the plaintiff’s 
action. 

Pleas are still further distinguished as general and special. 

General Pleas. Are pleas of the general issue and in which the 
defendant simply denies the allegations in the plaintiff’s declaration. 

Special Pleas. Are pleas in which the facts upon which the de¬ 
fendant relies to establish his defense are particularly stated. 

Pennsylvania has abolished special pleading in the action of 
assumpsit, trespass and ejectment, and prescribed the plea to be used 
therein, the same being as follows: 

Pleas in Actions of Assumpsit, Non Assumpsit, Payment, Set-off 
and the Bar of the Statute of Limitations. 

Plea in Action of Trespass and Ejectment is “not guilty.” 

Non Assumpsit. In using this plea the defendant avers that he 
did not undertake or promise as alleged in the plaintiff’s declaration. 


PRACTICE AND FORMS OF EAW AND EQUITY. 


91 


Payment. Is an allegation that the claim of the plaintiff has 
been fully paid. 

Set-Off. In this plea the defendant asserts that the plaintiff is 
indebted to him, and that this indebtedness he is entitled to have 
treated as full or partial payment of the plaintiff’s claim. 

Bar of the Statute of Limitations. The plaintiff has lost the 
right to maintain his action because of failure to bring it before the 
expiration of the time within which the statute provides the action 
must be commenced. The statute referred to requires that nearly all 
personal actions be commenced within six years after the cause of 
action arises. 

Not Guilty. In trespass means either that the defendant did not 
commit the tort of which he is accused, or that the plaintiff is not 
vested with such ownership or possession of the property injured as 
the law requires of him, or that if he did commit the tort, the same 
was not the immediate cause of the injury for which the plaintiff 
claims damages. In an action of ejectment it means either that the 
defendant is not in possession of the land described in the plaintiff’s 
declaration, or that his right to' the possession is superior to^ that of 
the plaintiff, or that the plaintiff does not own the land and is not, 
in any other manner, vested with right of possession to the same. 

Object of Pleas. Is to produce an issue. An issue arises when 
a fact or conclusion of law is maintained by one party to the action 
and denied by the other. 

An action cannot be submitted for trial until an issue is therein 
thus ascertained. The forms used for pleas are as follows: 


92 


practice: and forms of law AND EQUITY. 


FORMS OF PLEAS IN BAR. 


In Actions of Assumpsit. 


Edmund Foster 


vs. 


In the Court of Common Pleas 
of Philadelphia County. 


Chas. Holcomb. 


No. 9, April Term, 1903. 



The same form is applicable to all actions of assumpsit. Of 
course, the plea must be different if the defendant does not deny the 
promise alleged in the plaintiff’s declaration. The “different” pleas 
are hereinbefore named and defined. Then, too, all of these pleas 
may be entered in one action. If all are used the defendant may 
present, at the trial of the case, testimony in support of each and 
of all. 

In Actions of Trespass. 

Robt. P. Robinson } In the Court of Common Pleas 


of Clearfield County. 


Thomas R. Peters. 


No. 101, March Term, 1903. 


Now, February 1, 1903, the defendant, through his attorney, D. 
E. Baxter, pleads not guilty. 


D. E. Baxter, 
Attorney for Defendant. 


Note.—T he same plea, in the same form, is used in actions of 
ejectment. 


practice: and forms of taw and equity. 


93 


In Actions of Replevin. 

David Johnson \ 


In the Court of Common Pleas 
of Armstrong County. 


vs. 

Arnold Jenkins. ) 


No. 51, October Term, 1903. 


Now, January 7, 1903, the defendant, through his attorney, 
Horace Hands, pleads non cepit modo et forma. 

Horace Hands, 
Attorney for Defendant. 

Note. —In English, “non cepit modo et forma” reads: He did not 
take in manner and form. The other pleas in bar, available to the 
defendant in this action, are, actio non accrevit infra sex annos, or 
in English, “The action has not accrued within six yearscepit in 
alio loco, or “He took in another place,” and “property,” which 
means that the title and right of possession to the goods or chattels 
in controversy, are either in the defendant or a stranger to the action. 

In Actions of Dower. 



In the Court of Common Pleas 
of Lackawanna County. 


No. 11, March Term, 1903. 


Now, January 24, 1903, the defendant, through his attorney, M. 
J. Wilson, pleads ne unques seise que dower. 

M. J. Wilson, 
Attorney for Defendant. 

2q 0 XE.—Translation of “ne unques seise que dower,” is, “never 
seised of dower.” Some of the other pleas allowable in this action 
are, “ne unques accouple en loyal matrimonie,” or the plaintiff and 
her alleged husband were never joined in lawful wedlock; “tout 
temps prist,” or the defendant always has been and is now ready to 
render dower. 


94 


PRACTICE AND FORMS OF LAW AND EQUITY. 


In Actions of Partition. 


Chas. Vander Vort 
vs. 

Frank Argust, 

Matieda Perry, 
Thomas Argust, 
George Argust. 


In the Court of Common Pleas 
of Luzerne County. 

No. 15, March Term, 1903. 


Now, February 24, 1903, the defendants, through their attorney, 
E. A. Lynch, plead non tenent in-simul. 


E. A. Lyncij, 


Attorney for Defendants. 


Note. —“Non tenent in-simul” in English reads, “They do not 
jointly occupy.” 


practice: and forms of law and equity. 


95 


TRIAL. 

All of the actions are now ready for trial. But to avail them¬ 
selves of the right of trial the parties, or their attorneys, must cause 
the action to be entered upon the trial list of some term or session 
of the court. A trial list is a list of pleas marked, by the prothon¬ 
otary, for trial at any one term. These cases are entered on the list 
in the order of the dates of their commencement. The number of 
pleas on each list in Luzerne County is sixty, and, probably, this is 
the rule in most of the counties of che State. The method of order¬ 
ing a case on the trial list is a praecipe, addressed to the prothono- 
tary, the usual form of which' is as follows: 


Edmund Foster 
vs. 

Chas. Holcomb. 


In the Court of Common Pleas 
of Philadelphia County. 

No. 9, April Term, 1903. 


Enter the above entitled case on the trial list for May Term, 1903. 

J. Howard Gendel, 
Attorney for Plaintiff. 
April 15, 1903. 

To James Monroe, Esq., Prothonotary: 


If cases begun earlier ordered on the list, do not equal the number 
to which the list is restricted, the action in this praecipe is entered 
thereon. The judge presiding during the term mentioned in the 
list calls the cases for trial in the order in which the prothonotary 
has entered them. When the case is called the plaintiff and his at¬ 
torney seat themselves at one table, and the defendant and his attor¬ 
ney at another table in the trial room of the court house. Then a 


96 


practice: and forms of daw AND EQUITY. 


jury of twelve persons, taken from the whole number of jurors sum¬ 
moned to serve at the term of court in which the case is being tried, 
is selected. 

The method of choosing the jury is as follows: 

All the names of the jurors summoned are written by the pro- 
thonotary, or his clerk, on distinct slips or pieces of paper, as nearly 
alike in size and appearance as possible, and then these slips are sep¬ 
arately folded as nearly in the same manner as possible. These 
slips, thus prepared, are put into' a box provided for that purpose. 
After having well mixed the slips twenty of them, one after another, 
are drawn from the box. The names on these slips are written in 
the order in which they were taken from the box on a sheet of paper, 
from which the plaintiff and defendant each alternately strike four 
names. The remaining twelve jurors try the case. 

To the jury thus selected, before the beginning of the trial, the 
following oath or affirmation is administered: 

Oath. 

You, and each of you, do swear that you will well and truly try 
the issue joined between Edmund Foster, plaintiff, and Charles Hol¬ 
comb, defendant, and a true verdict render, according to the evi¬ 
dence, unless dismissed by the court, or the cause be withdrawn by 
the parties. So you shall answer to God at the last great day. 

Affirmation, 

You do. solemnly, sincerely and truly declare and affirm that you 
will well and truly try the issue joined between Edmund Foster, 
plaintiff, and Charles Holcomb, defendant, and a true verdict give 
according to the evidence, unless dismissed by the court, or the cause 
be withdrawn by the parties, and so you affirm. 

Opening of the: Triad. 

Immediately after the administration of this oath the plaintiff’s 
attorney opens the case of his client. In doing this the attorney in¬ 
troduces his address by saying: “May it please your Honor and 
Gentlemen of the Jury.” He then presents a.brief explanation of his 
client’s cause of action by outlining the nature of the transaction on 
which it is founded, the questions involved and the character, etc., 


practice: and forms of law and equity. 


97 


of the evidence to be adduced on the part of the plaintiff. The attor¬ 
ney for the defendant, after the plaintiff completes the submission 
of his testimony, in like manner opens for his client. In this open¬ 
ing the grounds of the defendant’s resistance of the plaintiff’s de¬ 
mand, and the evidence to be presented in support of the same, are 
explained. 

Evidence. 

Upon the conclusion of the opening of the plaintiff, through his 
attorney, he begins the introduction of his evidence. The oral evi¬ 
dence is furnished by witnesses, who have been summoned in a writ 
of subpoena to be present. The form of the writ is as follows: 

Philadelphia County, ss. : 

The Commonwealth of Pennsylvania to George Wells, greeting: 
We command you, that setting aside all manner of business and ex¬ 
cuses whatsoever, you be and appear in your proper person before 
our judges at the City of Philadelphia, at our Court of Common 
Pleas for the County of Philadelphia, and to be held on the 15th day 
of May, A. D. 1903, at ten o’clock in the forenoon of that day, to 
testify all in singular those things which you shall know in a certain 
action now depending and undetermined, between Edmund Foster, 
plaintiff, and Charles Holcomb, defendant, on the part of the plain¬ 
tiff; and this you are not to omit under the penalty of one hundred 
pounds. Witness the Honorable Michael Arnold, President Judge 
of our said court at Philadelphia, the 12th day of May, in the year 
of our Lord one thousand nine hundred and three. 

James Monroe, 

Prothonotary. 

Before testifying, a witness, with his right hand uplifted, is re¬ 
quired to- take an oath or affirmation. 

Oath. 

You doi swear that the evidence which you shall give to the court 
and jury, in the issue joined, wherein Jacob Hendershot is plaintiff, 
and Eli Sanderson is defendant, shall be the truth, the whole truth 
and nothing but the truth. So help you God. 


98 


PRACTICE AND FORMS OF LAW AND EQUITY. 


Affirmation. 

You do solemnly, sincerely and truly declare and affirm that the 
evidence which you shall give to the court and jury, in the issue 
joined, wherein Jacob Hendershot is plaintiff, and Eli Sanderson is 
defendant, shall be the truth, the whole truth and nothing but the 
truth, and so> you affirm. 

After the witness has taken this oath, his examination in chief is 
proceeded with by the plaintiff’s attorney. At the conclusion of his 
examination in chief, the'witness is cross-examined by the defend¬ 
ant’s attorney. The witnesses of the defendant are first examined by 
the defendant’s attorney and cross-examined by the plaintiff’s at¬ 
torney. Re-examination of a witness in chief is called redirect 
examination, and the cross-examination of a witness, who has under¬ 
gone re-direct examination, is called re-cross-examination. 

Examination “in chief” means examination of the witness by the 
party calling him, and cross-examination means examination of a 
witness upon his evidence given in chief by the other party. 

Objection to Evidence. 

The attorneys of the parties are at liberty to object to questions 
propounded to the witnesses. When objection is made the attorney 
interposing the same must assign reasons therefor. It is the duty 
of the judge to either rule in favor of or against the admission of 
the question involved in the objection before the witness is allowed 
to resume his testimony. If the judge decides that the question is 
admissible he says: “Objection overruled,” and, if he decides other¬ 
wise, he says, “Objection sustained.” If the attorney against whom 
the judge rules requests it, exception to the judge’s decision is noted 
in the record of the trial. For example, if the ruling is against an 
objection on the part of the defendant, the entry is, “Objection over¬ 
ruled. Exception for defendant noted and bill sealed.” 

The reasons assignable for objections to testimony proposed in 
questions to witnesses are the testimony is, 1, irrelevant; 2, hearsay; 
3, immaterial; 4, not cross-examination; 5, not the best evidence; 6, 
incompetent; 7, not rebuttal; 8, not surrebuttal. 

Irrelevant Testimony. Is testimony not related or applicable to 
the matter in issue. 


PRACTICE AND PORMS OP PAW AND EQUITY. 


99 


Immaterial Testimony. Is testimony which, if believed by the 
jury, should not be considered in deciding any question of fact in¬ 
volved in the issue. 

Hearsay Testimony. Is testimony of facts communicated to the 
witness by another person, not a party to the action. 

Not Cross-Examination. This objection is applicable to ques¬ 
tions in the cross-examination of a witness concerning matters of 
fact to which the attention of the witness was not directed in his ex¬ 
amination by the party calling him. 

Incompetent Evidence. If believed, not sufficient to establish 
the fact sought to be proved. 

Not Rebuttal. Not contradictory of any new matter introduced 
in the evidence submitted by the defendant in opposition to the evi¬ 
dence of the plaintiff in chief. 

Not Surrebuttal. Not contradictory of any new matter intro¬ 
duced by the plaintiff in rebuttal of the evidence of the defendant. 

Not the Best Testimony. Is oral testimony of facts which can be 
proven by written evidence, such as that furnished in deeds, bonds, 
letters, or any other instruments in writing. 

The evidence supplied in written instruments is called docu¬ 
mentary evidence. The objections that may be made to subjects of 
this testimony are that the writing is, 1, irrelevant; 2, immaterial; 
3, execution not proved. The reason last named means, it has not 
been shown that the signature was written by the party bearing the 
name, or by any other person whom he authorized to write the same. 

Objections to Witnesses. 

Objections may also be made to witnesses. The ground of this 
objection to witnesses is incompetency. Persons incompetent are: 

1. One who does not believe in the Divine Being, the Avenger 
of falsehood and perjury among men, and will not consent to invoke, 
by some binding ceremony, the attestation of that Power to' the truth 
of his testimony. 


100 


PRACTICE AND EORMS OE EAW AND EQUITY. 


2. One who has been convicted of the crime of perjury in any 
court of this Commonwealth. 

3. Both husband and wife to testify to confidential communi¬ 
cations, unless the right to objection is waived. 

4. Both husband and wife to testify against each other, except 
in proceedings of divorce, unless the right to objection is waived. 

5. Counsel to testify to confidential communications made to 
him by his client, or by him to his client, unless objection thereto is 
waived. 

6. A surviving party to a thing or a contract in action, if the 
other party connected therewith is dead, or has been adjudged a lun¬ 
atic, and whose right thereto or therein has passed, either by his 
own act or by act of the law, to* a party on the record who represents 
his interest in the subject in controversy. 


When the plaintiff finishes the introduction of his evidence his 
attorney announces, “The plaintiff rests.” Thereupon the defend¬ 
ant’s case is opened, and thereafter his testimony is presented. At 
the conclusion of his evidence his attorney announces, “The defend¬ 
ant rests.” After the defendant rests the plaintiff may call witnesses 
to rebutt any of the testimony of the defence not relating to matters 
constituting part of the plaintiff’s case in chief, and concerning which 
he did not adduce testimony before closing in the first instance. 

The action of the plaintiff in examining witnesses after the de¬ 
fendant rests is called his case in rebuttal, and that of the defendant, 
in examining witnesses after the plaintiff closes his rebuttal testi¬ 
mony, is called the defendant’s case in surrebuttal. The testimony 
of the witnesses of the plaintiff examined after the defendant rests 
is called testimony in rebuttal, and of the witnesses of the defendant 
examined after the plaintiff rests a second time is called testimony 
in surrebuttal. 

Generally the attorneys for the parties at the conclusion of the 
hearing of testimony, request the judge to instruct the jury upon 
certain points or propositions of law. The points are reduced to 
writing and numbered. Thus prepared they are presented to the 
judge and argued by the counsel. In his charge to the jury the 



PRACTICE AND FORMS OF LAW AND EQUITY. 


101 


judge reads them, and expresses upon each his ruling. As to those 
in which he concurs he says: “Affirmed.” As to those in which he 
does not concur he says: “Negatived.” Immediately following the 
argument on points the defendant’s attorney addresses the jury. In 
this address he argues the questions of fact to be determined in the 
verdict. For this purpose he invites attention to such testimony as 
best serves the cause of his client. To this address the attorney for 
the plaintiff replies, and, in like manner, seeks to gain victory for 
the cause of his client. 

The trial is then concluded by the charge of the judge. The 
charge is the final address made by the judge to the jury trying the 
case, before they make up their verdict, in which he sums up the 
case and instructs the jury as to the rules of law which apply to its 
various issues, and which they must observe, in deciding upon their 
verdict. 

After receiving these instructions the jury retire to the jury 
room to deliberate upon their verdict. A verdict is a formal and 
unanimous decision or finding of a jury, empanelled and sworn for 
the trial of a cause, upon the matters or questions duly submitted to 
them upon the trial. Before the jury retire they are placed in charge 
of a tipstaff, who is sworn “to keep them in some private and con¬ 
venient place until they shall have agreed upon their verdict; and 
not permit any person to speak to them, nor to speak to them him¬ 
self without leave of the court, except to< ask if they have agreed 
upon their verdict.” 

The first step taken by the jury after their retirement is in the 
election of one of their number foreman. They then proceed to the 
consideration of the testimony, and, if possible, continue their con¬ 
sideration until they have agreed upon a verdict. If, after an effort, 
occupying a day or two, it appears to them that they cannot agree, 
through their foreman, they report to the judge that they are unable 
to agree. If the judge is satisfied of the truth of this report he 
discharges the jury, otherwise he sends them back to the jury room 
to make further effort. If, at the expiration of a-reasonable period 
of time, their second endeavor does not yield an agreement, and they 
still insist that they cannot agree, they are generally discharged. If 
the jury do thus fail to render a verdict another trial of the case is 
necessary to secure a judicial determination of the controversy be¬ 
tween the parties. 


102 


practice: AND FORMS OF DAW AND FQUlTY. 


If the jury do agree upon a verdict they return to the trial room 
and the foreman, through the clerk, presents the verdict to the judge. 
After inspecting it the judge returns the verdict to the clerk, and 
thereupon he announces to the jury their verdict, as it has been re¬ 
corded by the court. If the case in which the verdict is rendered is 
an action of assumpsit, and is in favor of the plaintiff, the form in 
which the announcement is made is as follows: “Gentlemen of the 
jury, listen to your verdict as the court hath recorded it. You do say 
that in the case wherein Jacob Albright is plaintiff and Jeremiah 
Slocum the defendant, you do find in favor of the plaintiff and 
against the defendant for one thousand dollars. So> say you all.” 
If the verdict is in favor of defendant the announcement of the find¬ 
ing is: “You find in favor of defendant no cause of action.” In the 
former event judgment is entered in favor of the plaintiff for the 
sum therein mentioned, together with all costs, and, in the latter 
event, judgment is entered in favor of the defendant for costs. 

To fully illustrate the proceedings in a trial, and furnish forms 
with which a law stenographer should be familiar, imaginary notes 
of the official stenographer of the court are here given in the imag¬ 
inary case of Frank Smith vs. George Wells. 


Frank Smith ) 

vs. I No. 9, April Term, 1903. 

Gforge: Wfuus. ) 

The above entitled case up for trial Thursday, 21st day of May, 
1903, before Hon. Simon P. Befogger, A. L. J., and jury, in Court 
Room No. 1. 

Appearances: For the plaintiff, Dennis O. Coughlin, Esq.; and 
for defendant, H. B. Hamlin, Esq. 

Jury sworn at 3 P. M., and case opened for the plaintiff by Mr. 
Coughlin. 

Edmund Fostfr sworn for plaintiff. 

Examined in chief by Mr. Coughlin. 

Q. Where do you reside? A. At No. 45 Chestnut Street, in 
the City of Philadelphia. 


practice and tor ms op daw and equity. 


103 


Q. How long have you been a resident of that city? A. Fif¬ 
teen years. 

Q. In what business have you been engaged during the last 15 
years ? A. In business of buying and selling agricultural products 
to wholesale dealers. 

Q. Are you acquainted with the parties to this suit? A. I am. 

Q. How long have you known them? A. I have known the 
plaintiff about ten years, and the defendant nearly five years. 

Plaintiff’s Counsel. Note bearing date April 1, 1901, drawn to 
the order of Edmund Foster, payable in two months, for the sum of 
$1,000.00 and signed George Wells, shown witness. 

Q. Whether or not you are the payee named in that note? A. 
I am. 

Q. Whose name is signed to the note? A. The name of the 
defendant. 

Q. In whose handwriting is this signature of the maker? A. 
In the handwriting of the defendant. 

Q. How do you know it is in his handwriting? A. Because I 
saw him write it. 

Q. Look at the back of the note and state what you find written 
there, if anything? A. I find my name. 

Q. In whose handwriting is this name ? A. In my handwriting. 

Q. When did you write your name on the back of the note? A. 
The second day of May, 1901. 

Q. Immediately after writing your name there what did you 
do with the note ? A. I delivered it to the plaintiff. 

Plaintiff’s Counsel offers the note in evidence. 

Note admitted and marked Exhibit A. 

Cross-examination by Mr. Hamlin. 

Q. Please name the street and number of the plaintiff’s resi¬ 
dence? A. No. 47 Chestnut Street. 

Q. How far is his residence from your residence? A. About 
25 feet. 

Q. How long has the defendant resided upon the street and at 
the number you have named ? A. I have lived there with my family 
ten years, the plaintiff was at that time living at his present home. 
How long he had been residing there previous to that time I am un¬ 
able to say. 


104 


PRACTICE AND FORMS OF LAW AND EQUITY. 


Q. You said, in your direct examination, that you were ac¬ 
quainted with the plaintiff; how intimately are you acquainted with 
him? A. Very intimately. 

Q. Is your intimate acquaintance with the plaintiff due to any 
relations other than that existing between next door neighbors ? 

Plaintiff’s Counsel. Objected to as not cross-examination. 

The Court. Objection overruled. 

A. Yes, sir. 

Q. State the other relations. A. We are brothers-in-law—his 
wife is my sister. I have also been associated with him in several 
business ventures. 

Q. Are you associated with him in any business at this time? A. 
No, sir. 

Q. Were you at the time you transferred the note in evidence 
to him? A. No, sir. 

Q. What was the plaintiff’s business at the time you delivered 
the note to him ? A. He was a real estate broker. 

Q. Where was his office at this time? A. At No. 98 Market 
Street. 

Q. Where was your place of business at that time ? A. No. 150 
Market Street. 

Q. How far was your place of business from the office of the 
plaintiff ? A. About half a block, or in the neighborhood of 300 feet. 

Q. Where were you at the time you indorsed the note ? A. At 
the office of the plaintiff. 

Q. Any other persons in the office at that time ? A. I have no 
recollection of seeing any other persons there. 

Q. The second day of May, 1901, was what day of the week? 
A. I do not recollect. 

Q. State the hour of the day on which you indorsed the note? 
A. I do not recollect. 

Q. Was it the forenoon hour or afternoon hour? A. I am un¬ 
able to say. 

Q. Was it at some hour between 9 o’clock in the forenoon and 
6 o’clock in the afternoon ? A. It must have been, because I know 
that Mr. Foster is never in his office later than 6 P. M., nor earlier 
than 9 A. M. 

Q. Do you know Moses Simpson, chief clerk of the defendant? 
A. Yes, sir. 


PRACTICE AND FORMS OF LAW AND EQUITY. 


105 


Q. To refresh your recollection as to the hour of the day on 
which you indorsed the note I ask you this question: “Do you not 
remember that you indorsed and delivered the note the same day 
that Mr. Simpson delivered to you, at your place of business, a mes¬ 
sage from the defendant concerning the transaction in which he gave 
the note to you ?” A. I am not sure, possibly I did. 

Q. Do you remember the time of the day this message was de¬ 
livered? A. I do not. 

Q. Did you not immediately, after the receipt of the message, 
go directly to the office of the plaintiff, and then and there indorse 
and deliver to him the note? A. To the best of my recollection !. 
did not. 

Q. To the best of your recollection when did you indorse the 
note, before or after you received the message? A. I do not re¬ 
member. 

Q. Do you remember of any business you called at the plain¬ 
tiff’s office to transact at that time, other than to sell the note to him ? 
A. I have no recollection upon the subject. 

Q. State the conversation between plaintiff and you, which re¬ 
sulted in the plaintiff’s purchase of the note? 

Plaintiff’s Counsel. Objected to as not cross-examination. 

The Court. Objection sustained, exception noted and bill sealed 
for defendant. 

Q. You have said you are acquainted with the defendant; how 
well are you acquainted with him ? A. Oh, very well, indeed. 

Q. To what relations is your acquaintance with him due? A. 
Only business relations. 

Q. To what business relations do you refer ? A. I mean I have, 
during the three or four years preceding the date of the note in this 
case, sold him, many times, large quantities of agricultural products, 
and during all that time have been, and am now, a member of the 
board of directors of the bank in this city of which he is president. 

Q. His place of business is also on Market Street? A. Yes, sir. 

Q. How far from your place of business? A. Three blocks. 

Redirect-examination. 

Q. When were you last concerned in any business enterprise 
with the plaintiff? A. In the spring of 1899. 


106 


PRACTICE AND FORMS OF LAW AND EQUITY. 


Recross-examination. 

Q. What was the business in which you were, in the spring of 
1899, concerned with the defendant ? A. In the retail coal business. 

Plaintiff rests at 4 :30 P. M. 

Mr. Hamlin opens for the defense. 

George Wells sworn for the defendant. 

Examination by Mr. Hamlin. 

Q. You are the defendant in this case? A. Yes, sir. 

Q. How old are you? A. Sixty-five years. 

Q. How long have you been a resident of the City of Philadel¬ 
phia? A. Sixty-five years. 

Q. What is your business? A. The business in which I am 
concerned, as sole proprietor, is the business of a wholesale dealer in 
agricultural products and groceries. 

Q. At the time you gave the note in question who were present ? 
A. Mr. Foster, the payee in the note, and the plaintiff. 

Q. State all that occurred in the presence of Mr. Foster and 
the plaintiff on that occasion, in relation to the transaction furnish¬ 
ing the consideration for the note. A. Mr. Foster said to me, “I 
have purchased several thousand bushels of potatoes, and they will 
be delivered here in a week or two. How many bushels can I sell 
you at the rate of fifty cents a bushel?” I said, “I will take 2,000 
bushels if they are delivered at my place of business on or before the 
first day of next May.” I told him I must have them at that time be¬ 
cause in a month or two after the demand would be for new potatoes. 
He said he would not fail to make the delivery on the first of May, 
and that he was very sure he could do it several days earlier. I then 
said, “Subject to the condition that they are here on the first day of 
May, I will take 2,000 bushels.” 

Q. What happened after you said you would take the potatoes ? 

Plaintiff’s Counsel. Objected to, unless the conversation occur¬ 
red in the presence of plaintiff. 

The Court. Objection sustained. 

Q. State whether or not the plaintiff was present when you had 


practice and Forms of daw and equity. 


107 


the conversation with Mr. Foster, which you are about to relate in 
response to my last question? A. Yes, sir. 

Q. State that conversation. A. He asked me how I desired to 
pay for the potatoes. I said, “I never depart from the 30-day rule.” 
He said, “Well, then, if I do not deliver them until the first of May 
you will not pay until the first of June. About the 15th of this month 
my family and I are going to California, and while there I expect 
to make some large investments during the forepart of May. To 
arrange for this unusual draught on my bank account I would like 
to have as large a credit in this account as possible. To accommo¬ 
date me in the matter would you be willing to give me your note 
now, payable in 60 days?” I said, “That would be a most unbus¬ 
iness-like transaction; you might not deliver the potatoes at the time 
appointed, and in the meantime negotiate the note to an innocent 
purchaser.” He said, “Failure of delivery at the time I have agreed 
to make it, is, I am sure, impossible, but to provide for such a con¬ 
tingency, I will agree to place the note in my bank, to be discounted 
on the second of May, and if the potatoes are not delivered on the 
first of May I will have the note returned to you.” I said, “Why, 
then, do you want the note now? If you are willing to agree to not 
use the note until the second of May, how would it be of any advan¬ 
tage to you now ?” He said, “I will not be here at that time, and if 
it is then in the hands of the bank the credit I may need there for 
my personal investments will be immediately given to me.” I said, 
“Will you explain to the bank your agreement with me not to use 
the note until the second of May, and to return it to me if the po¬ 
tatoes are not delivered on the first of May?” He said, “I will.” 

Q. After he said, “I will explain the agreement,” what did 
you do? A. I gave him the note. 

Q. Were the potatoes delivered on the first of May? A. No, 
sir. 

Q. What did you do, if anything, because of the failure of Mr. 
Foster to make delivery? A. The next day I caused a notice of the 
fact to be served by my chief clerk, Mr. Simpson, upon the Fifth 
National Bank, this being the bank in which Mr. Foster said he 
would place the note. 

Q. Did you do anything else concerning the matter? A. Yes, 
sir, when my clerk returned and reported the information he had 


108 


PRACTICE AND FORMS OF LAW AND EQUITY. 


received from the bank, I immediately wrote a message to Mr. Fos¬ 
ter, and directed Mr. Simpson to deliver it at once. 

Q. Have you got a copy of the message? A. Yes, sir. 

Q. At what hour of the day did Mr. Simpson leave your place 
of business with the message? A. At ten o’clock in the forenoon. 

Q. At what time did he return? A. He was absent from my 
store just one hour. 

Q. When he came back what did you say ? 

Plaintiff’s Counsel. Objected to- as hearsay. 

The Court. Objection sustained. 

Q. Whether or not you subpoenaed Mr. Foster to produce the 
message? A. I did. 

Q. When ? A. Day before yesterday I caused a subpoena to be 
issued to him. 

Q. Who served the subpoena? A. My clerk, Mr. Simpson. 

Q. Whether or not the plaintiff ever demanded of you pay¬ 
ment of the note before beginning this suit? A. Yes, about a week 
or ten days after it was due. 

Q. What did you say on this occasion ? A. The conversation 
occurred on the street. The meeting was accidental. I was going 
to noon-hour luncheon. He said, “Mr. Wells, I purchased your note 
in favor of Foster. I should have spoken about it earlier, but an 
extraordinary rush of business so commanded my attention that I 
did not think of it. It is now overdue several days. Is it convenient 
for you to pay it now ?” 

Q. What did you say to him ? A. I accused him of being a 
party to a scheme to swindle me. I told him I would not pay the 
note- unless compelled by the highest court to which I could appeal 
for protection. 

Q. What reply did the plaintiff make to- this? A. He denied 
my accusation, and said he would immediately commence legal pro¬ 
ceedings against me. 

Q. After the time he made the demand of which you have 
spoken, whether or not he ever said anything to you about the note ? 
A. He never did. 

Adjourned to 10 o’clock to-morrow A. M. 

Now, May 22, 1903, court met, pursuant to adjournment. 


PRACTICE AND FORMS OF LAW AND EQUITY. 


109 


George Weeds recalled for cross-examination. 

Cross-examination by Mr. Coughlin. 

Q. In what department of your store did the talk you had with 
Mr. Foster about the note and your purchase of the potatoes occur? 
A. In the general salesroom of the produce department. 

Q. You mean in the room where you sell produce to your cus¬ 
tomers? A. Yes, sir. 

Q. How many people were in this room at that time ? A. I do 
not remember. 

Q. Is it possible that there were not any others besides the 
plaintiff, Mr. Wells, your clerks and yourself? A. No, sir. 

Q. About what time of the day was the transaction? A. I do 
not remember the exact time. 

Q. Was it the forenoon or afternoon? A. I am quite certain 
it was in the forenoon. 

Q. The latter or forepart? A. Latter part. 

Q. Is it not true that you always have a larger number of pa¬ 
trons in the salesroom of your produce department in the latter part 
of the forenoon than at any other part of the day? A. Yes, sir. 

Q. Are you willing to testify that at any time during the year 
of 1901 you had on any business day, in the latter part of the fore¬ 
noon, in the salesroom of your produce department, fewer than 50 
customers at one time? A. I am. 

Q. Fewer than 25 ? A. I will not positively so testify, and yet 
it might be true. 

Q. How large is the salesroom you have mentioned? A. It is 
50 feet by 30 feet. 

Q. How many clerks are employed in this room? A. Most of 
the time ten. 

Q. In what part of the salesroom did you talk with Mr. Foster 
about the potatoes and note ? A. At my private desk in the rear of 
the room. 

Q. Is this desk in an enclosure ? A. No, sir. 

Q. During the latter part of forenoons your clerks are very 
busy, are they not ? A. Yes, sir. 

Q. And because of the presence of so many customers there is 
a great deal of noise? A. No great noise. My clerks are not per¬ 
mitted to engage in conversation not necessary to the proper per¬ 
formance of their duties, and my customers are gentlemen. 


110 


PRACTICE AND FORMS OF LAW AND EQUITY. 


Q. I did not intend to reflect upon the faithfulness of your 
clerks or the manners of your customers. I take it for granted that 
your business cannot be conducted, however careful your clerks and 
customers may be to avoid it, without creating considerable noise, 
especially when 25 or more of your customers are in the salesroom, 
and they all men. Have I made a mistake? A. Of course, under 
the circumstances a little noise is unavoidable. 

Q. You have in your salesroom two elevators? A. Yes, sir. 

Q. During business hours these elevators are in constant opera¬ 
tion? A. Yes, sir. 

Q. You also have, leading from the salesroom to upper floors, a 
flight of stairs, up and down which your customers are continually 
moving? A. Yes, sir. 

Q. Then, too, you have in this room two telephone instruments 
which are used frequently during the business hours of the day ? A. 
Yes, sir. 

Q. At the time you gave Mr. Foster an order for potatoes were 
you acquainted with Edward Greenleaf, then a general life insurance 
agent, and having his office at No. 1001, Chestnut Street ? A. I knew 
him, but not very well. 

Q. He is not living now, is he ? A. I think I did hear or read 
of his death. 

Q. Did you observe Mr. Greenleaf in your salesroom at the time 
of your transaction with Mr. Foster ? A. I did not. 

Q. Will you testify that he was not there at that time? A. I 
will not so testify. 

Q. Why? A. Because, no doubt, there were a great many 
people with whom I was better acquainted in there, and yet I have 
no recollection of having observed them. 

Q. Of course, you would not testify they were in there, and for 
the same reason you would not testify that Mr. Greenleaf was not 
there? A. For the same reason I would not testify. 

Q. In your examination in chief you said plaintiff was present 
at the conversation between Mr. Foster and you. I notice that you 
did not say he heard all of the conversation. Was this omission in¬ 
tentional or accidental? A. Accidental. 

Q. Then you would have the court and jury to understand that 
in testifying that Mr. Foster was present, you also meant he heard 
all that was said in the conversation? A. Of course, I would not 


practice: and forms of law and equity. 


Ill 


say he heard every word, but I know he heard enough of the con¬ 
versation to learn and fully understand the terms and conditions of 
the transaction. 

Q. Why are you certain he heard so much of the conversation? 
A. Because he stood not more than three or four feet from my desk. 

Q. As to the distance you have stated you are not positive, are 
you, that it was not more than three feet? A. Quite positive. 

Q. Did Mr. Foster say anything? A. Yes, in the beginning of 
the conversation. 

Q. What did he say ? A. He said, addressing Mr. Foster and 
myself: “Here you are, Greek against Greek. Begin the battle.” We 
began the battle, and it is not ended yet. 

Q. Have you recollection of any other remark of the plaintiff? 
A. I have not, but I am quite sure he made other remarks. 

Q. Of course, the conversation was not in a loud tone of voice ? 
A. No, sir. Still it was not in whispers. 

Q. Was the personnel of your clerks the same as it is now? 
A. Yes, sir. 

Q. No doubt you have interviewed these clerks for the purpose 
of ascertaining whether they heard any of the conversation? A. I 
did. 

Q. What was the result? A. They said they did not. 

Q. Will you positively testify that the plaintiff did not imme¬ 
diately after making the remark you have quoted, retire from your 
desk, to a point in the room distant from your desk not less than ten 
feet, and engage in conversation with either Mr. Greenleaf or some 
other individual ? A. I will testify that the point to which he retired 
is not ten feet, but I will not positively say he did not talk with some 
individual during the time Mr. Foster and I had our conversation. 

Redirect-examination. 

Q. Where was the plaintiff standing at the conclusion of your 
conversation ? A. So near to me that, without moving forward, he 
laid his hand on my shoulder and said: “I hope you are having floods 
of prosperity.” 

Q. After the plaintiff thus assured you of his deep interest in 
your welfare what happened? A. The plaintiff and Mr. Foster 
walked from my presence into the street. 


112 


PRACTICE AND EORMS OP PAW AND EQUITY. 


Recross-examination. 

Q. How much time did your conversation with Mr. Foster oc¬ 
cupy ? A. I am sure not more than ten minutes. 

Edmund Foster recalled for defendant . 

Subpoena issued in this case May 19, 1903, shown witness by de¬ 
fendant’s counsel. 

Q. Was this writ served upon you? A. Yes, sir. 

Q. Who. served it? A. Mr. Simpson. 

Q. When? A. I think a day or two before the commencement 
of this trial. 

Q. In this subpoena you are required to produce a message or 
letter bearing date the second of May, 1901, and relating to the note 
defendant gave you, bearing date 21st of April, 1901, payable in sixty 
days, and for $1,000.00. Have you the message or letter referred 
to? A. No, sir. 

Q. Why? A. Because the same day I received it I tore it into 
pieces and threw them into the waste paper basket of my office. 

Q. What was afterwards done with these pieces, together with 
other waste papers in the basket? A. They were burned. 

Moses Simpson sworn for defendant . 

Q. Are you employed by the defendant at his place of business 
in the produce department? A. Yes, sir. 

Q. How long have you been in his service? A. Upwards of 
five years. 

Q. In what capacity do you work for the defendant ? A. I am 
chief clerk. 

Q. Are you acquainted with the plaintiff and Mr. Foster? A. 

I am. 

Paper shown witness by defendant’s counsel. 

Q. What have you in your hand? A. A carbon copy of the 
message I delivered to Mr. Foster on the second of May, 1901. 

Q. Whose name is signed to the message? A. The name of 
the defendant. 

Q. If you know, who wrote the name? A. I saw the defend¬ 
ant write it. 


PRACTICE AND FORMS OF LAW AND EQUITY. 


113 


Q. You said you delivered the message, of which the paper in 
your hand is a copy; in what manner and where did you deliver it ? 
A. I handed it to Mr. Foster at his office. 

Q. If you remember of any other persons being in his office 
when you gave it to him, state who they were. A. The plaintiff and 
his wife were there. 

Q. W hether or not Mr. Foster read the message in your pres¬ 
ence? A. Yes, sir. 

Q. After reading it what did he say? A. He said: “Is it true 
those potatoes have not been delivered?” I said : “Yes, sir.” He said : 
“Is it possible; I supposed they were there two or three days ago. 
The delay must be due to some accident on the railroad or mistake in 
the consignment. You tell the old gentleman that I will attend to 
the matter at once.” I said, as stated in the message: “He does not 
want them now.” He said: “I will talk with him about that, I think 
I can prevail upon him to change his mind.” 

Q. Was the plaintiff present when this talk occurred? A. I am 
positive his wife was there when Mr. Foster talked about the mes¬ 
sage, and, according to the best of my recollection, he was. He did 
not remain long after I entered. He went out ahead of me, but his 
wife was still in the office when I came out. 

Q. About how long were you in his office ? A. Probably not 
more than ten minutes. 

Q. After you left the office, and before you returned to your 
employer’s place of business, whether or not you saw Mr. Foster. 
A. Yes, sir, on the opposite side of the street, just in front of the 
building in which the plaintiff has his office. I stopped in a cigar 
store. While there I saw Mr. Foster and the plaintiff’s wife enter¬ 
ing the hall of the building leading to the elevator. Mr. Foster had 
in his hand an envelope that looked exactly like the one I had de¬ 
livered to him. Because of the thought this fact suggested to my 
mind, I decided to watch a little while. After an interval of about 
ten minutes the plaintiff and Mr. Foster walked from the hall on to 
the sidewalk and there separated, Mr. Foster going in the direction 
of the defendant’s place of business, and the plaintiff in an opposite 
direction. I then hastened to the store and found Mr. Foster there. 
Mr. Wells, the proprietor, was not in. 

Q. What did Mr. Foster say to you ? 


114 


practice: AND FORMS OF TAW AND EQUITY. 


Plaintiff’s Counsel. Objected to for the reason that the plaintiff 
was not present, and hence anything said by Mr. Foster on that oc¬ 
casion, is incompetent to effect his rights in this action. 

Defendant’s Counsel. We allege a fraudulent combination be¬ 
tween Mr. Foster and the plaintiff to deprive the defendant of the 
right to use his equitable defense to' the note in question,, and thu» 
unjustly compel him to pay it. 

The Court. We think the defendant has shown enough to jus¬ 
tify us in submitting the allegation of fraudulent combination to 
the consideration of the jury. Hence, the objection is overruled. 
Exception noted and bill sealed for the plaintiff. 

A. He said: “Mr. Simpson, I forgot to tell you that I had 
transferred the note to Frank Smith, my brother-in-law. Please in¬ 
form Mr. Wells of this fact.” He also requested me to say to Mr. 
Wells that the potatoes would be delivered in a day or two. 

Q. Whether you conveyed the message to your employer? A. 
I did. 

Q. What did he do or say? A. The next day he directed me. 
to warn Mr. Foster not to' undertake to deliver the potatoes, as he 
would not under any circumstances receive them. The: same day I 
delivered the message to Mr. Foster. 

Q. Whether or not Mr. Foster, after you conveyed this mes¬ 
sage to him, ever did attempt to deliver the potatoes. A. He did not. 

Q. What did he say when you told him the defendant would 
not receive them? A. He said: “You tell him that Mr. Smith will 
certainly compel him to pay the note, and to save himself from loss 
he better take the potatoes.” 

Adjourned until two o’clock P. M. 


Court met pursuant to adjournment. 

Moses Simpson recalled . 

Cross-examined by Mr. Coughlin. 

Q. You have taken a very active interest in this case? A. No 
greater interest than was necessary to obey the instructions of my 


practice: and forms of daw and equity. 


115 


employer, and take advantage of opportunities to secure informa¬ 
tion for him which I thought would be valuable to him in the trial 
of this case. 

Q. I suppose your employer generously rewarded you for these 
services. A. He has not given me any pecuniary reward; it is pos¬ 
sible that my efforts have gained for me increased confidence, in his 
mind, of my trustworthiness. 

Q. Has he not since this suit was begun increased your salary? 
A. Yes, sir. 

Q. Are your services, as clerk, any more valuable to him than 
they were prior to the commencement of this suit? A. I think not. 

Q. Are you now required to do any work which was not de¬ 
manded of you prior to the commencement of this suit ? A. No, sir. 

Q. Can you name a reason why your salary was advanced, 
other than that furnished in the service you have rendered him in 
this case ? A. I do not now, and never did, believe that he gave me 
the increase as compensation for what I have done for him in this 
case. I do, however, believe that in performing this service for him 
I gained the goodwill of his gratitude, and by it he was prompted 
to increase my salary. 

Q. Did he not tell you that he gave you the increase on account 
of what you had done for him in this case ? A. He did not. 

Q. Were you not influenced'by the increase to make more vig¬ 
orous effort to aid him in this case? A. Possibly I have been more 
vigilant and active in this service than I would have been if the in¬ 
crease had not been given to me. 

Q. Are you positive the plaintiff was in the office of Mr. Foster 
when you delivered the message of which you have spoken in your 
testimony in chief? A. I am. 

Q. Was he sitting or standing? A. He was standing. 

Q. It was raining, was it not? A. I am not positive, but I 
think it was. 

Q. When you entered the office was not the plaintiff standing 
near the door with an umbrella in his hand ? A. He was standing 
near the door. I do not recollect seeing an umbrella in his hand. 

Q. Will you testify that he did not, in less than one-half min¬ 
ute after you entered the office, go out? A. I will not positively, 
but I think he was there more than half a minute after I entered. 

Q. Will you positively testify that he was there long enough to 


116 


practice: and forms of daw and equity- 


hear you say anything to Mr. Foster about the message? A. Not 
positively, but according to the best of my recollection he was there 
long enough to hear me say nearly, if not all, I did say about the 
message. 

Q. What was the color of the envelope in which you delivered 
the message? A. White. 

Q. What was the size of the envelope? A. The usual letter 
size. 

Q. How long and how wide? A. About three and one-half 
inches wide and six inches long. 

Q. When you saw the envelope in his possession, while you 
were standing in the cigar store, upon what part of his person did 
you see it? A. In his right hand. 

Q. Where in his right hand? A. One corner was between his 
thumb and forefinger. 

Q. How wide is the street at the cigar store? A. I do not 
know the exact width, but I think it is sixty feet. 

Q. You mean between the curbs? A. Yes, sir. 

Q. How wide is the sidewalk in front of the cigar store ? A. At 
least ten feet. 

Q. How wide is the sidewalk on the other side of the street? 
A. About ten feet. 

Q. When you saw Mr. Foster with the envelope in his hand, 
he was walking in or near the center of the sidewalk, was he not? 
A. Yes, sir. 

Q. Then at the time you saw the envelope in his hand the dis¬ 
tance between Mr. Foster and you was at least seventy-five feet? 
A. Yes, sir, I think it was. 

Q. Could you see the address on the envelope? A. No, sir. 

Q. Could you see any writing or printing on the envelope ? A. 
I do not believe I could. 

Q. You are, therefore, positive you did not see any printing or 
writing? A. I did not see any because of the distance between Mr. 
Foster and myself. 

Q. Then, in your statement in chief that the envelope you saw 
in Mr. Foster’s hand looked like the one you delivered, you meant 
to say that the former seemed to have the same color and dimensions 
as the latter? A. Yes, sir. 


practice: and forms of paw and equity. 


117 


Q. Are not envelopes such as you delivered in common use? 
A. Yes, sir. 

Defendant’s Counsel. Message referred to in the testimony of 
the witness last called offered in evidence. 

Plaintiff’s Counsel. Objected to for the reason that it has not 
been shown that the plaintiff had knowledge of its contents. Hence, 
the message is incompetent to effect the right of the plaintiff in this 
action. 

The Court. We do not hesitate to say that the testimony thus 
far adduced to charge the plaintiff with knowledge of the contents 
or purport of the message is, in a large measure, unsatisfactory. 
But, not being convinced that it is wholly undeserving of consider¬ 
ation by the jury, and being reminded of the allegation of defend¬ 
ant that a fraudulent combination existed between the indorser and 
the plaintiff, and of the circumstances shown in the testimony in sup¬ 
port of this allegation, the objection is overruled. 

Exception and bill sealed for plaintiff. 

Defendant’s counsel reads the message: 

“Philadelphia, Pa., May 2, 1901. 

“Mr. Edmund Foster. 

“Dear Sir.—The thousand bushels of potatoes I ordered of you 
not having been delivered per our agreement I notify you of my 
determination not to accept delivery of same at any time in the 
future. You are, therefore, requested to return to me immediately, 
through the bearer, Mr. Simpson, the note I gave you, subject to the 
agreement that you would return the same to me if the potatoes 
were not delivered on the first day of this month. 

“Yours respectfully, 

“George Weeps.” 


John Snodgrass, sworn for defendant. 

Examined by Mr. Hamlin. 

Q. Are you acquainted with Edmund Foster, and George Wells, 
the defendant in this case ? A. I am. 


118 


practice: and forms of taw AND EQUITY. 


Q. What is your business ? A. Produce broker. 

Q. If you ever had a conversation with Mr. Foster, in which he 
spoke of a sale of potatoes to Mr. Wells, state when, where and 
what he said? A. I had such a conversation with Mr. Foster in my 
office, No>. 45 Walnut Street, in the latter part of April, 1901. He 
said he had sold Mr. Wells potatoes, and that he had agreed to de¬ 
liver them not later than the first of next month. He then asked me 
if I could procure them for him. I replied I could not do it before 
the tenth or fifteenth of next month. He said he could not wait until 
that time; that if he failed to make delivery the first, he would lose 
the sale. 

Cross-examined by Mr. Coughlin. 

Q. Have you talked with anybody about this conversation ? A. 
Yes. 

Q. To whom? A. Mr. Wells. 

Q. Where? A. Not long after the commencement of this suit. 

Q. Where ? A. At my office. 

Q. Any persons present other than Mr. Wells and yourself? 
A. No, sir. 

Q. How did you happen to speak to him about the matter ? A. 
He told me of his transaction with Mr. Foster, and of the suit 
brought against him by Mr. Smith. This reminded me of my con¬ 
versation with Mr. Foster, and I repeated it to him. 

Q. Mr. Wells and you were then and are now very close 
friends? A. Yes, sir. 

Q. You were not then and are not now on very friendly terms 
with either Mr. Smith or Mr. Foster? A. I am not an enemy of 
either, but confess I do not have that regard for either which I en¬ 
tertain for friends. 

Q. How do you know it was in the latter part of April, 1901, 
the conversation occurred? A. Mr. Wells asked me the date of the 
conversation, at that time, and I recalled a letter I had received from 
Mr. Foster shortly before then. I looked at this letter and found it 
was dated the 20th of April, 1901. 

S. J. Strous sworn for defendant. 

Examined by Mr. Hamlin. 

Q. You are a member of the bar of Philadelphia County? A. 
Yes, sir. 


practice and forms of law and equity. 


119 


Exhibit A shown witness by plaintiff’s counsel. 

Q. Whether or not the plaintiff consulted you respecting the 
right to recover on that note ? 

Plaintiff’s Counsel. Q. In the consultation referred to in the 
question just propounded to you, what was the relation between you 
and the plaintiff? A. That between attorney and client. 

Plaintiff’s Counsel. The proposed testimony is objected to be¬ 
cause the witness is incompetent, he having obtained the informa¬ 
tion to which his attention has been directed while serving the plain¬ 
tiff as his counsel. ♦ 

The Court. The objection is sustained. 

Mrs. Frank Smith sworn for defendant . 

Examined by Mr. Hamlin. 

Q. Are you acquainted with the plaintiff? A. Yes, sir, he is 
my husband. 

Plaintiff’s Counsel. The witness being the wife of the plaintiff 
she is incompetent to testify in this case at the instance or on behalf 
of the defendant. 

The Court. Objection sustained. 

Defendant rests at 3 :50 P. M. 

Frank Smith sworn for plaintiff in rebuttal . 

Examined by Mr. Coughlin. 

Q. You are the plaintiff in this case? A. Yes, sir. 

Q. You are also the person to whom the note in question was 
indorsed by Mr. Foster, the payee named in the note? A. Yes, sir. 

Q. State fully all the details of the transaction through which 
you became the owner of the note? A. Some time during the fore¬ 
part of May, 1901, Mr. Foster came to my office in company with 
my wife. Immediately after coming in he said he was quite ser¬ 
iously embarrassed because he was unprovided with means sufficient 
to satisfy some demand he had undertaken to meet that day. I said, 
“Why not have your note discounted?” He said, “I have gone to 


120 


PRACTICE AND FORMS OF LAW AND EQUITY. 


the limit on that line, but I have a note of a thousand dollars drawn 
by George Wells for the potatoes I sold him last month. I wish you 
would cash it for me.” I only had $600.00 available to me at that 
time, and I said to him, “I will let you have that amount for the 
note, and when it is paid will account to you for the balance of the 
$1,000.00.” He said the arrangement would give him the relief 
needed, and he accepted my proposition. He then indorsed and de¬ 
livered the note to me and I gave him the $600.00. 

Q. Whether or not Mr. Foster then said anything to you con¬ 
cerning the message in evidence. A. He did not. 

Q. Whether or not previous to your purchase of the note you 
knew of the existence of the message from any source ? A. No, sir. 

Q. Whether or not you had knowledge from any source of the 
failure of Mr. Foster to deliver the potatoes for which the note was 
given, at the time appointed in any agreement between Mr. Foster 
and defendant prior to your purchase of the note. A. I did not. 

Q. Did you hear any part of the conversation relating to the 
note or the agreement of the defendant to purchase the potatoes? 
A. I did not. 

Q. State the reasons why you did not hear. A. Immediately 
after saluting the defendant, Edward Greenleaf, now dead, standing 
at a point at least fifteen feet from where the defendant and Mr. 
Foster made their bargain, called me. I walked over to him and 
he had some plan of life insurance he wanted me to invest in. We 
talked quite a while about the plan and then I returned to Mr. Wells’ 
desk, where he and Mr. Foster transacted their business. After I 
returned to him nothing was said about the agreement or note, and, 
as I recollect, not more than a dozen words about anything else. 

Q. Whether or not anything besides the distance between you 
and the defendant prevented you from hearing the conversation be¬ 
tween Mr. Foster and the defendant? A. Yes, at that time there 
were more than fifty customers in the room, some of whom were 
continually walking up and down the stairs to and from the upper 
floors; ten or fifteen clerks were constantly moving about the room 
and talking with customers; the elevator was running at short inter¬ 
vals, and somebody was, most of the time, answering telephone calls. 
Because of the noise thus occasioned I am sure I could not have 
heard a conversation, in an ordinary tone of voice, carried on not 
more than six or eight feet from me. 


practice: and forms of taw and equity. 


121 


Q. Whether or not you had knowledge from any source of any 
of the terms or conditions of the defendant’s agreement to purchase 
the potatoes, or of any terms or conditions upon which he gave the 
note in question, prior to the date or at the time of your purchase of 
the note? A. No, sir. 

Q. State whether or not you knew, of your own knowledge or 
through information furnished by others, that the note was subject 
to any terms or conditions other than those in the note itself ? A. I 
did not. 

Q. You heard the testimony of the defendant concerning a con¬ 
versation with you in which you spoke of having purchased the note; 
did you have a conversation at a later date? A. Yes, sir. 

Q. State what was said in this latter conversation? A. It oc¬ 
curred not long after the first. He apologized for the harsh lan¬ 
guage he used when I spoke to him about the note, saying he was 
sorry he accused me of attempting to swindle him, and that it ap¬ 
peared to him then as if we were both victims of Foster’s trick. I 
told him I did not know anything about a trick; I bought the note, 
and, of course, should insist upon his payment of it. He said, “I am 
not willing to do that now, but possibly I will be after further inves¬ 
tigation.” 

Q. Did you have any further talk with him about the note? 
A. No, sir. 

Cross-examined by Mr. Ffamlin. 

Q. Do you remember seeing Mr. Simpson, the defendant’s clerk, 
at Mr. Foster’s office about the time the note was transferred to you? 
A. I had forgotten the incident, but because of the testimony of 
that gentleman, it occurred to me that I did see him there about that 
time. 

Q. Do you remember of your wife being there with you at that 
time? A. Am not positive, but think she was. 

Q. Is it not true that Mr. Foster came to your office with your 
wife the same day, and then and there, in her presence, the note was 
indorsed by Mr. Foster and delivered to you? A. It might be true, 
I do not recollect. 

Q. You do remember, however, that your wife came to your 
office with Mr. Foster, and the transaction occurred in her presence. 
A. Yes, sir. 


122 


PRACTICE AND FORMS OF LAW AND EQUITY. 


Q. Did not Mr. Foster have in his hand, when he at that time 
entered your office, an envelope? A. If he did I have no recollec¬ 
tion of seeing it. 

Q. Do you remember that after the note was delivered to you, 
vou and Mr. Foster came out of the building together, and on the 
sidewalk separated, he going towards the defendant’s place of. bus¬ 
iness, and you in the opposite direction? A. I remember that we 
came out of the building together, but I do not recollect how or 
where we separated. 

Q. Did not Mr. Foster, while he was in your office, or at the 
time you separated, tell you where he was going? A. I do not 
recollect. 

Q. Did you ever have knowledge of the message in evidence 
before the commencement of this trial? A. Yes, sir, about six 
months after I purchased the note, my wife spoke to me about it. 

Q. What did you do when you learned the fact? A. Nothing. 
It did not occur to- me that my rights were in any way affected by 
the message. 

Q. Did you speak to Mr. Foster about it ? A. I am not sure, 
but I do not believe I did. 

Q. In what form did you give the $600.00 to Mr. Foster? A. 
In cash, which I had in my office safe. 

Q. Has not Mr. Foster since returned the $600.00 to you ? A. 
No, sir. 

Q. Has he not given you collateral security for the repayment 
of it? A. No, sir. 

Q. Have you not, since you took the note from him, become in¬ 
debted to him, and if you have, has he not agreed with you to release 
you from payment of this account, in the event of your failure to 
recover in this suit? 

Plaintiff’s Counsel. Objected to as immaterial. 

The Court. What is the purpose of the proposed testimony? 

Defendant’s Attorney. First. To prove a circumstance which, 
we insist, affords some evidence in support of our allegation of 
fraudulent combination, and, second, to prove conduct on the part of 
Mr. Foster contradictory of any testimony the plaintiff may adduce 
in opposition to- the evidence of the defendant respecting the agree¬ 
ment we allege, in regard to the giving of the note, and corrobora- 


PRACTICE AND FORMS OF DAW AND EQUITY. 


123 


live of our testimony touching this agreement. We respectfully sub¬ 
mit that, it having been shown in the evidence of the plaintiff that 
he is seeking to recover $400.00 of the $1,000.00 for the benefit of 
Mr. Foster, he, Mr. Foster, is a party to this action, and, for the pur¬ 
pose of defeating the attempt to> recover anything for him, we have 
a right to present any evidence which would be admissible if he were 
the plaintiff of record in this case. 

The Court. The problem the object submits to our considera¬ 
tion is this: “Is the proposed testimony material?” Of course, if 
such an arrangement as that alluded to in the question was made 
after the purchase of the note, it is difficult to understand how it 
tends to prove a fraudulent conspiracy in the purchase of the note. 
To affect the rights of the indorsee male fides in him must be shown 
at the time of purchase. Hence, for the purpose first named in the 
defendant’s offer, the objection is sustained. Exception and bill 
sealed for plaintiff. 

In its relation to the other purposes named, we are of the opinion 
that the testimony is material. Mr. Foster is undoubtedly a bene¬ 
ficiary party to this action, and, therefore, any conduct on his part- 
consistent with the theory of the defense as to the absence of any 
right in him to recover, is material. We overrule the objection in 
respect to' the second purpose. Exception and bill sealed for plaintiff. 

A. We have such an understanding, but no real agreement. 

Q. Did not Mr. Foster, some time before the commencement of 
this action, agree that he would not require you to pay his account 
against you unless you recovered in this suit? A. He did. 

Q. Do you not expect to be thus saved from loss if you do not 
recover in this action ? A. I expect him. to fulfill his promise. 

Q. His account against you amounts to at least $600.00, does it 
not? A. I think so. 

Q. Did you not tell George Allen that whatever defense the de¬ 
fendant set up in this case it would not cause you any worriment, as 
you were amply indemnified against loss by Mr. Foster ? A. I did 
not. 

Q. You are acquainted with Mr. Allen? A. Yes, sir, slightly. 

Q. Did you ever have any talk with him on the subject? A. 
No, sir. 

Q. You have said you did not hear the agreement between the 
defendant and Mr. Foster, now did you tell Mr. Allen that you did 


124 


practice: and forms of law and equity. 


hear it, but did not suppose at the time you purchased the note that 
it would affect your rights as an indorsee? A. I did not. 

Q. Is it not true, at the time you took the note, you did not be¬ 
lieve that, if you did have knowledge of such an agreement as that 
testified to by the defendant, it would defeat your right to recover 
in this case? A. Not then having such knowledge I did not form 
any opinion respecting the matter. 

Q. When you advanced the $800.00 to Mr. Foster, on account 
of the note, you were familiar with the defendant’s financial rating ? 
A. I think I was. 

Q. You knew that he was responsible for one hundred times 
the amount of the note? A. Yes, sir. 

Q. You knew that no bank in Philadelphia would hesitate to 
discount his paper for $1,000.00 or $50,000.00? A. Yes, sir. 

Q. Well, then, did it not seem peculiar to you that Mr. Foster 
did not go to the banks with the note instead of bringing it to you, 
especially in view of the fact that he could have gotten $1,000.00 for 
it from them and you gave him only $600.00 for it? A. I do not 
remember of having so thought of his action. 

Q. You simply offered to advance him the $600.00 without mak¬ 
ing inquiry of him of the reason why he did not seek the accommo¬ 
dation of a bank? A. Yes, sir. 

Q. And he did not volunteer any explanation of his coming to 
you instead of going to the banks? A. No, sir. 

Q. Did not the defendant say to you, in the conversation to 
which you have testified, that he was surprised at your action in aid¬ 
ing Mr. Foster to cheat and swindle him by a rogue’s trick? A. No, 
sir, he said just what I have repeated. 


Edmund Foster recalled by plaintiff in rebuttal . 

Examined in chief by Mr. Coughlin. 

Defendant’s Counsel. We respectfully request that the counsel 
for plaintiff state in writing the testimony he proposes to submit 
through this witness. 

Plaintiff’s Counsel. We propose to prove by the witness on the 
stand: First. That the agreement respecting the sale of the potatoes 
was not as represented by the defendant in several material par¬ 
ticulars. Second. That the note in question was not given subject 


practice: and forms of law and EQUITY. 


125 


to the conditions stated by the defendant in his testimony in chief. 
Third. That the plaintiff did not hear the agreement respecting the 
sale of the potatoes, and that the witness never stated to him the 
terms or conditions of the same. 

Q. State briefly your contract with the defendant, concerning 
your sale to him of the potatoes. A. I sold him the potatoes for 
$1,000.00. I am quite certain that there was no positive undertaking 
on my part to make the delivery, as he has stated, on the first of May. 
Nor have I any recollection of its being agreed that the bargain 
should be considered annulled if they were not then delivered. I do 
not remember, he said anything about the likelihood of his having 
some trouble to dispose of them if they were not delivered as early 
as the first of May, but I did not then, and do not now, understand 
that he meant the sale was conditioned upon the delivery being 
made at that time. 

Q. Why did you not deliver the potatoes ? A. The parties from 
whom I purchased them absolutely engaged to make the delivery on 
the 25th off April, and after that date, until I received the message 
in evidence, I supposed they had been delivered. I think on the 5th 
or 6th of May I saw the defendant and explained to him my disap¬ 
pointment and said to him, “The potatoes will be here to-morrow.” 
He said, “I will not accept delivery. I told you I would not in my 
message. I have not since changed my mind.” I said, “Why not 
take them? I am sure you can get rid of them at a reasonable profit.” 
He persisted in his refusal to accept, and I warned him of the fact 
that I had transferred the note and told him he would be compelled 
to pay the note in spite of his refusal to' take the potatoes. 

Q. What agreement, if any, did you make with the defendant 
respecting the note? A. After he gave me the note he said, “If you 
do not deliver the potatoes, of course, you will return the note to 
me?” I said, “Of course, I will, if you do not refuse to' take them.” 
I do not recollect any further talk about returning the note. 

Q. During the time you were talking with the defendant about 
selling him the potatoes, and the note, where was the deceased plain 
tiff? A. In the salesroom of the defendant, distant from where he 
and I were twelve or fifteen feet, engaged in conversation with Mr. 
Greenleaf. 

Q. Did he hear what the defendant or you said? A. No, sir. 


126 


practice: and forms of daw and kquity. 


Q. How do you know he did not hear? A. We talked in a low 
tone of voice, and there was great confusion and considerable noise 
in the room. Because of these conditions I know he did not hear. 

Cross-examined by Mr. Hamlin. 

Q. You have not, as I understand it, undertaken to positively 
deny the defendant’s statement of the terms of the agreement. A. 
I have undertaken to positively state my recollection and understand¬ 
ing of the agreement. 

Q. Will you positively testify that it was not a part of the 
agreement that unless the potatoes were delivered on the first of 
May the defendant was to be released from his promise to buy? A. 
I will positively testify that such was not my understanding of the 
agreement. 

Q. Will you positively testify that nothing was said which justi¬ 
fied in the mind of the defendant such an understanding? A. I do 
not recollect anything. 

Q. Will you admit the possibility of anything having been said 
which would furnish warrant for such an understanding? A. I will 
admit that I do not now remember all that was said, and, of course, 
I could not positively testify that in the things I have forgotten there 
was not some slight excuse for his entertaining such an under¬ 
standing. 

Q. According to your understanding was there any limit to the 
time within which you were given the privilege of delivering the 
potatoes? A. Do not recall any agreement respecting the time of 
delivery, but I think it was understood that they were to be delivered 
in the forepart of May. 

Q. Why do you think that was the understanding? A. Because 
he spoke of the likelihood of having trouble to get rid of them at a 
later period. 

Q. You knew that in this remark he stated the truth, did you 
not? A. Yes, sir. 

Q. Of course, you understood the potatoes were to be delivered 
before the time appointed for payment of the note? A. Not because 
of anything said, which I now recollect, but by inference, I did. 

Q. You heard the defendant state the reason why he gave you 
the note at the time he ordered the potatoes? A. Yes, sir. 

Q. Is that statement true? A. I have no recollection of telling 
him I would not negotiate the note, or that I would return it to him 


practice: and forms of law and fquity. 


127 


if the potatoes were not delivered on the first of May. As to the 
remainder of his statement it corresponds with my recollection. 

Q. You did then tell him you were going toi California, where 
you expected to make large investments? A. Yes, sir. 

Q. You did tell him you wanted the note in order to have it 
placed to your credit in your absence? A. Yes, sir. 

Q. You did tell him you would notify the bank that the note 
was given to you subject to conditions named by the defendant at 
the time you received the note from him ? A. Not remembering any 
conditions, of course, I do not now recollect any such promise. 

Q. You did not go* to' California? A. No, sir, unexpected in¬ 
terference prevented. 

Q. Did you tell John Allen that you did undertake to deliver 
the potatoes on the first of May and to return the note to the defend¬ 
ant if you failed to make the delivery at that time, but you had trans¬ 
ferred the note so he could not use the agreement in a suit to recover 
the note ? A. I never did. 

Court adjourned to 10 A. M., 23rd day of May, 1903. 

Now, May 23, 1903, court met pursuant to adjournment. 

Counsel for Defendant. May it please the court, I very much re¬ 
gret that I am compelled to announce the death of my client, and 
suggest the substitution of his executor, Francis Jordan. The defend¬ 
ant was killed in a railroad accident last evening. Reasons of an 
unusual character seem to make it necessary to not allow the most 
unfortunate event to interrupt this trial. Hence, this morning we 
had the will of the deceased probated, and are, therefore, ready to 
proceed with the hearing. 

Counsel for Plaintiff. We also very much regret the melan¬ 
choly incident. We consent to the proposition of the plaintiff to 
continue the trial. 

The Court. The clerk will enter of record the suggestion of 
death and substitution of executor. 

Edmund Foster, recalled by the plaintiff. 

Defendant’s Counsel. Please state what you propose to prove by 
the witness. 


128 


practice: and forms of taw AND EQUITY. 


Plaintiff’s Counsel. We propose to have him state more fully 
some items of the agreement relating to the purchase of the pota¬ 
toes, and the giving of the note, to which his attention was particu¬ 
larly directed in the cross-examination. 

Defendant’s Counsel. Objected to, because the witness is in¬ 
competent, the other party to the agreement referred to being dead. 

The Court. Objection sustained. 

John Plumber sworn for plaintiff in rebuttal . 

Counsel for Defendant. Object to the witness for the reason 
that he is incompetent, he having been convicted in a court of this 
Commonwealth for the crime of perjury. To prove the truth of this 
statement we offer in evidence the record of the case in which he was. 
convicted: 


Sessions, A. D. 1902. 

Perjury. Thomas Blackwell, Pros. 

Transcript filed 1st of February, 1902. 

Defendant is committed in default of 
bail. 

Now, May first, 1902, issue joined and jury called and jury came, 
to wit, Edward Pumper, Thomas Driver, Jacob Slasher, John Wil¬ 
helm, Charles Orr, Eli Hopper, Patrick Sullivan, John Whitwasher, 
Fred Skip, James Johns, John Williams, William Jones, who being 
sworn according to law, find the defendant guilty as indicted. 

Now, June 20th, court sentences the defendant, John Plumber, to 
pay the Commonwealth a fine of $500.00, pay the costs of prosecu¬ 
tion, and undergo imprisonment in the Philadelphia County prison 
for the term and period of seven calendar months, and that he stand 
committed until this sentence is complied with. 

Counsel for defendant to the witness: 

Q. Are you the person named in the foregoing sentence of the. 
court? A. Yes, sir. 


September 

Commonwealth, \ 

No. 292, / 

vs . ( 

John Plumber. / 



practice: and forms of taw AND EQUITY. 


129 


Q. Did you serve the term mentioned ? A. I did, but was inno¬ 
cent, the verdict of the jury was unjust. 

The Court. The objection sustained. 

Plaintiff rests. 

Moses Simpson, recalled for defendant in snrrebuttal. 

Counsel for plaintiff requests counsel for defendant to state what 
he proposes to prove by witness. 

Counsel for Defendant. We propose to prove by the wit¬ 
ness that Edmund Foster, the payee of the note in suit, did say to 
John Allen that he undertook to deliver the potatoes on the first day 
of May, and to return the note to the defendant if he failed to make 
the delivery at that time, but he transferred the note so he (defend¬ 
ant) could not use the agreement in a suit to recover the note. 

Q. State whether or not Edmund Foster made the statement to 
John Allen we have just quoted? A. He did. 

Q. When did he make this statement? A. About six months 
ago. 

Q. Where ? A. I do not know, Mr. Allen did not tell me. 

Counsel for Plaintiff: 

Q. Did you hear Mr. Foster make the statement of which you 
have spoken ? A. No, sir. 

Q. How did you obtain your knowledge of his having made the 
statement? A. Mr. Allen told me he made it. 

Counsel for Plaintiff. We object to all of the testimony of the 
witness respecting the alleged statement, because it is hearsay, and 
move that the same be stricken from the record. 

The Court. Objection sustained, and motion to strike out testi¬ 
mony allowed. 

John AeeEn called for defendant in snrrebuttal. 

Counsel for plaintiff asks leave to examine the witness on the 
voir dire with a view of ascertaining the facts in regard to his com¬ 
petency. 


130 


PRACTICE AND EORMS OE EAW AND EQUITY. 


The Court. Leave is granted counsel for plaintiff. 

Q. Do you believe in a Divine Being, the Avenger of falsehood 
and perjury among men? A. I do not. 

Q. Do you believe in the existence of a God who will punish a 
man if he swears falsely? A. I do not. 

Counsel for Plaintiff. Witness objected to because he is incom¬ 
petent. 

The Court. Objection sustained. 

Defendant rested at 11:30 A. M. and testimony closed. 

Immediately upon conclusion of the testimony points were sub¬ 
mitted in writing to the court and argued. Court adjourned until 
2 P. M. 

Court met pursuant to adjournment. 

Mr. Hamlin addressed the jury in behalf of defendant, and Mr. 
Coughlin in behalf of the plaintiff. 


The Charge oe the Court. 

Gentlemen of the Jury: 

It is now the duty of the court to direct your attention to the ques¬ 
tions of fact, upon the determination of which your verdict in this 
case must be founded. It is also our province to> give you instruc¬ 
tions concerning the law by which the effect of the facts ascertained 
by you, upon the rights of the parties to this action, is measured. In 
the performance of this duty we are not at liberty to suggest or inti¬ 
mate to you any opinion we may entertain respecting the truth of 
any controversy of fact. Such contention in the testimony you, 
alone, are authorized to determine, and the court is not allowed in 
any manner to influence your conclusions. In our charge to you 
this limit to our privilege we shall endeavor to regard with the ut¬ 
most fidelity. 

To assist you in your deliberation upon your verdict we shall, in 
a general way, remind you of such testimony as we deem it import- 



PRACTICE AND FORMS OF DAW AND EQUITY. 


131 


ant to consider. If, however, we do not allude to all of the evidence 
which you believe material, you must not restrict your investigation 
to the scope of our allusions, but use the light of all the testimony 
in the case in your effort to agree upon a verdict. 

This action was instituted to recover moneys which, it is alleged, 
the defendant promised to' pay Edmund Foster or order. The in¬ 
strument in which the defendant undertook this obligation is a prom¬ 
issory note. The original parties to the contract, thus evidenced, 
are called maker and payee. In this case the maker is the defend¬ 
ant, and the payee is Edmund Foster. The note is for $1,000, and 
was executed and delivered by the defendant to Edmund Foster on 
the first day of April, 1901. The consideration which influenced the 
defendant to make the promise contained in the note was an agree¬ 
ment on the part of the payee to deliver to him, at his place of bus¬ 
iness, in the City of Philadelphia, 2,000 bushels of potatoes. 

The note has all the characteristics necessary to the negotiability 
of such an instrument in this State. A note which may be trans¬ 
ferred by indorsement or by delivery merely, so as to vest in the per¬ 
son to whom it is transferred, the legal title to the same, and the 
right to sue thereon in his own name, is negotiable. The statute of 
this State provides that an instrument to be negotiable, (1) must be 
in writing and signed by the maker or drawer; (2) must contain an 
unconditional promise or order to pay a sum certain in money; (3) 
must be payable on demand, or at a fixed or determinable future 
time, and (4) must be payable to order or to bearer. 

You will observe that all these essentials are in the note in ques¬ 
tion. Hence, the plaintiff’s legal title to the note and right to sue 
thereon cannot be questioned. The note was transferred to him 
through indorsement by Mr. Foster, the payee. Indorsement is the 
act of the payee of a negotiable instrument, in writing his name on 
the back of the instrument for the purpose of transferring his prop¬ 
erty in the same to another. Indorsement was necessary in this case 
because the note was payable to order. If it had been drawn payable 
to Edmund Foster or bearer, delivery, alone, by Mr. Foster to the 
plaintiff, would have been sufficient. 

Mr. Foster, in negotiating the note to the plaintiff by indorse¬ 
ment, the law absolutely assumes, undertook to warrant (1) that 
the note is genuine and in all respects what it purports to be; (2) 
that he has a good title to it; (3) that all prior parties to the note had 


132 


practice: and forms of law and equity. 


capacity to' contract; (4) and that he has no knowledge of any fact 
which would impair the validity of the note or render it valueless. 
The parties to the contract resulting from indorsement are called 
indorser and indorsee, the former being in this case Mr. Foster, and 
the latter the plaintiff. 

None of the facts or principles of law to which we have thus far 
directed your attention are subjects of any controversy in this case. 
The execution and delivery of the note, the nature of the considera¬ 
tion of the defendant’s promise in the note, and the negotiation of 
the note by the payee therein to the plaintiff, are established in the 
evidence of the plaintiff, and not denied by the testimony submitted 
on the part of the defendant. Hence, we say to you, you are at lib¬ 
erty to presume the admission of all these facts. Thus, beginning 
your deliberation, your consideration of the testimony will be lim¬ 
ited to that relating to the questions of fact introduced after the 
plaintiff closed his case in chief. In other words, it is unnecessary 
for you to consider any contention of fact not involved in the testi¬ 
mony of the parties relating to the allegations of the defense. 

The answer of the defendant to the plaintiff’s case in chief 
mainly consists of three propositions: 

I. 

That he gave the note in question to Mr. Foster subject to an 
agreement in which he, Mr. Foster, promised he would not negotiate 
the note or otherwise use it previous to the first day of May, 1901, 
and if the potatoes, constituting the consideration of the note, were 
not delivered on that day he would have the note returned to the 
defendant. 

II. 

That the plaintiff, as to the difference between the amount of the 
note and the price he paid for the same, is trustee for Mr. Foster, 
and, therefore, he cannot recover this difference, if the jury believe 
the testimony of the defense respecting the alleged cotemporaneous 
agreement, even if the plaintiff never had knowledge of said agree¬ 
ment and purchased the note in good faith. 

III. 

That the plaintiff, at the time the note was transferred to him, 
had knowledge of the entire transaction, including the alleged agree- 


practice: and forms of daw and equity. 


133 


ment we have mentioned, and on account of which, it is alleged, the 
note was given by the defendant to Mr. Foster. 

The questions of fact submitted to you in these propositions 
should be considered by you in the order in which we have presented 
them. We make this suggestion because, as you no doubt observe, 
unless you find the facts as stated in the first proposition, considera¬ 
tion of the questions in the others is wholly unnecessary. Hence, we 
advise you to' begin your deliberation with the inquiry, “Did Mr. 
Foster, before or at the time of the delivery of the note to him, agree 
that he would not negotiate ol* otherwise use the note previous to 
the first day of May, 1901, and that if the potatoes were not deliv¬ 
ered at that time he would have the note returned to the defendant ?” 

Now, regarding this controversy, who has given you the truth— 
the defendant or Mr. Foster? You have heard their testimony, seen 
their conduct as witnesses, and listened to the able and exhaustive 
arguments of counsel. 

In the light thus furnished you must endeavor to agree upon a 
conclusion. We find it difficult to decide upon a method of present¬ 
ing the testimony of Mr. Foster to you. It does not involve an un¬ 
qualified denial of the defendant’s contention that there was an 
agreement that the sale of the potatoes should be cancelled and the 
note returned to him if the delivery was not made on the first day of 
May. He said he did not recollect such an agreement; that he was 
not quite certain that there was no positive undertaking on his part 
to make the delivery, as he (the defendant) has stated, on the first 
day of May. 

We have decided to submit to you this testimony in the following 
manner: 1st. Does it contradict the testimony of the defendant? 
2nd. If you find it does contradict the testimony of the defendant, 
does it convince you that the defendant did not tell the truth? in 
your consideration of the first question you should apply to> the words 
used by Mr. Foster that meaning which is accorded to> them in the 
ordinary affairs of life. Observing this rule, what meaning do you 
ascribe to, “I am quite certain;” to “Nor have I any recollection;” 
to “I positively testify that it was not my understanding that the 
agreement to buy the potatoes was to be annulled if they were not 
delivered on the first of May;” to “I have no> recollection of telling 
him I would not negotiate the note, or that I would return it to him.” 


134 


practice: and forms of law AND EQUITY. 


The important words in these extracts for you to consider are, 
“quite certain/’ “recollection,” and “my understanding.” Do these 
words, in their relation to the other words with which they are asso¬ 
ciated, convey meanings contradictory of the defendant’s testimony ? 
What is your interpretation of the words, “quite certain ?” Do they 
so effect the statement of the witness as to' make it the expression of 
an opinion or recollection in which the possibility of a mistake is ad¬ 
mitted ; or does the statement, in spite of these words, express a fact ? 
You should also in like manner ascertain the meaning of the words 
“my understanding.” Do these words deny the testimony of the de¬ 
fendant that the sale of the potatoes was conditioned upon delivery 
on the first day of May, or do they merely declare that he, the wit¬ 
ness, did not understand that such a condition was in the agree¬ 
ment of purchase? 

If you find the agreement was as stated by the defendant, 
he was not compelled to accept delivery of the potatoes at 
any time after the first day of May, nor to pay anything to 
Mr. Foster on account of his premise to buy the potatoes. Also, 
if you find that the note was accepted subject to the conditions, 
viz: That it should not be negotiated or otherwise transferred 
before the second day of May, and if at that time the potatoes 
had not been delivered the note should be returned to the defend¬ 
ant, it being conceded that delivery was not then made, the de¬ 
fendant could not be compelled to pay the note or any part of it to 
Mr. Foster. If, however, you find that no special time was appointed 
for the delivery of the potatoes, and that tender of delivery was 
made by Mr. Foster and acceptance refused by the defendant, and 
that the note was not given subject to the conditions to which the 
defendant testified, Mr. Foster would be entitled to recover the full 
amount of the note, together with lawful interest, and the plaintiff, 
having succeeded to the rights of Mr. Foster, he would also be en¬ 
titled to the same recovery. 

But if you adopt the other conclusion, viz., that the defendant’s 
statement of facts is true, the question which we have advised you 
to next consider is: Did the plaintiff accept the note sub¬ 
ject to the condition that he would account for and pay over to Mr. 
Foster any sum he might recover in excess of the price he paid for 
it? That is, did he agree to pay Mr. Foster the difference between 
any amount recovered by him and the $600 which he paid for the 


PRACTICE AND EORMS OE DAW AND EQUITY. 


135 


note? As to> this inquiry the testimony is uncontradicted, and fur¬ 
nished by Mr. Foster himself. Hence, we take it for granted you 
will find that there was such an agreement. In case you do so find, 
we say to you that under the law the plaintiff cannot re¬ 
cover more than the $600, with lawful interest. Of course, you un¬ 
derstand that this instruction is based upon the assumption that you 
believe the testimony of the defendant respecting the contract be¬ 
tween himself and Mr. Foster. As we have already instructed you, 
if you do not believe this testimony your verdict should be in favor 
of the plaintiff for the full amount of his claim. If you adopt the 
former conclusion and find that there was an agreement between Mr. 
Foster and the plaintiff that the latter should not have, out 
of the sum recovered, more than the $600, and that the remainder 
should belong to Mr. Foster, we instruct you that no more than 
$600 and interest can be recovered in this suit. This is true because, 
as to the balance of the plaintiff’s claim, he instituted, in legal effect, 
this action as trustee of Mr. Foster. Hence, to> that extent the de¬ 
fendant has a right to avail himself of any defense in this trial that 
he could interpose if Mr. Foster were the plaintiff. 

We now go to the consideration of the question of fact relating 
alone to the rights of the plaintiff. Heretofore we have been dealing 
with questions upon the solution of which the rights of Mr. Foster 
are dependent. 

Now, did the plaintiff take the note subject to any rights 
in law or equity, you may find in the defendant to refuse payment 
of the same? In other words, if you find that the agreement con¬ 
cerning the purchase of the potatoes and the execution of the note 
was as stated by the defendant, does this conclusion, as matter of 
law, affect the rights of the plaintiff in this action ? The answer to 
this question must be determined by your finding upon No. 3 issue 
of fact, to which we have already directed your attention, viz: 3. 
Did the plaintiff have knowledge of the transaction between Mr. 
Foster and the defendant, including the terms of the agreement, and 
the condition subject to which the note was given? 

Any qualification or restriction of the liability undertaken by the 
maker of a negotiable instrument, if constituting a material part of 
the inducement which influenced him to make and deliver the instru¬ 
ment, will be enforced against the payee. But such a qualification 


136 practice; and forms of daw and EQUITY. 

or restriction not set forth in the writing is not available to the maker 
in a contest with a bona fide purchaser of the instrument for value. 
The statute of this State, to> which we have already referred, pro¬ 
vides that an indorsee against whom the equities of the maker can¬ 
not be asserted is one (a) that became the holder of the note before 
it was overdue, and without notice that it had been previously dis¬ 
honored, if such was the fact; (b) that he took it in good faith and 
for value; (c) that at the time it was negotiated to him he had no 
notice of any infirmity in the instrument or defect in the title of the 
person negotiating it. 

Until it is proved that the title of the indorser from whom the 
holder purchased the note is defective, the latter is presumed to be 
a bona fide purchaser for value. The instant, however, defectiveness 
of the title of his indorser is established, the law demands of him af 
firmative proof of all the facts in the definition of a bona fide pur¬ 
chaser for value. If the agreement between Mr. Foster and the de¬ 
fendant were as described in the testimony of the defendant, the title 
of Mr. Foster was defective. Hence, if you find that it was thus 
defective, you must decide whether or not the proof submitted by 
the plaintiff in itself, and as affected by the testimony of the defense, 
convinces you, 1st. That the plaintiff purchased the note in suit be¬ 
fore it was overdue, and without notice that it had been previously 
dishonored. 2nd. That the plaintiff, at the time he purchased the 
note, took it in good faith and for value, and, 3rd, That at the time 
it was negotiated to him the plaintiff had no notice of any infirmity 
in the note or defect in the title of Mr. Foster. 

These questions present an issue of fact in the trial of which the 
burden is upon the plaintiff. In other words, the plaintiff cannot 
claim the protection provided a bona fide purchaser for value, with¬ 
out furnishing evidence in which there is full warrant for affirma¬ 
tive answers to all these questions. Respecting the first question, 
viz: Did the plaintiff purchase the note in suit before it was over¬ 
due, etc., it is conceded that the answer should be in the affirmative. 
He purchased the note previous to the date appointed for its pay¬ 
ment, hence it was not overdue, and he could not have had notice that 
it had been dishonored. A note is said to be dishonored when, on due 
presentation at maturity, payment is refused. At the time the note 
in suit was negotiated to the plaintiff it was not yet payable, and, 
therefore, payment of it could not have been previously demanded. 


PRACTICE AND EORMS OP LAW AND EQUITY. 


137 


Hence, we say to you that it is your duty to find that the note did 
not go into the hands of the plaintiff dishonored. 

The next question to which we shall now proceed to direct your 
attention is this: Did the plaintiff have knowledge of the 
details of the transaction between the defendant and Mr. Foster? 
Of course, in this connection, you will recall our instruction that it 
is unnecessary to consider this question unless you are convinced 
that the defendant has told the truth concerning the agreement, es¬ 
pecially in regard to the time the delivery of the potatoes was to be 
made, and the condition upon which he avers the note was given. 
If you do not find the defendant stated the truth, in this behalf, as we 
have already said to you, the plaintiff is entitled toi recover the full 
amount of his claim. If you find otherwise, then you must take up 
and determine the inquiry: Did plaintiff have knowledge 
of this agreement? In case you conclude that the defendant cor¬ 
rectly stated the agreement, the only ground upon which it can be 
held that the plaintiff was not bound by the agreement, is 
that available alone to' a bona fide holder of a negotiable note. In 
other words, to escape the legal effect of the agreement he must make 
it appear to your satisfaction (a) that he purchased the note before 
the time appointed for its payment; (b) that lie paid value for it, 
and (c) that he did not have knowledge of the terms of the agree¬ 
ment, affecting the title of Mr. Foster to the note, at the time it was 
transferred to him. 

Of these conditions, the third renders it necessary to consider the 
question we are now submitting to you. If the plaintiff 
knew of any defect in the title of Mr. Foster when he took the note, 
constituting a valid defense in any action on the part of Mr. Foster 
to enforce its payment, he was not a bona fide holder. Did he, at 
that time, have such knowledge ? 

The defendant contends that the deceased plaintiff was present 
at the making of the agreement, and that his nearness to the parties 
furnishes full warrant for the inference that he heard all the details 
of the transaction. The plaintiff, in his testimony, says he 
did not hear the conversation of the parties relating to the agreement 
or any part of it; that while it was in progress, because of the com¬ 
motion in the store, the distance between them and him, and the fact 
that he- was engaged in conversation with a Mr. Greenleaf, now 


138 


practice: and forms of daw and equity. 


dead, he could not have heard the talk if he had made an effort to 
hear it. 

Thus, as you will notice, the real point for your consideration in 
this connection is, did the plaintiff hear what the parties 
said ? He testified he did not hear. This is a positive statement, and 
unless you find the witness is unworthy of belief, you should accept 
this statement as true. Touching this matter we must assume that 
he knew the truth. If he heard, he knew it then, and it is reasonable 
to assume he knew it when he gave his testimony. It is equally man¬ 
ifest that if he did not hear, he knew it then and also' at the time he 
testified. Hence, we again say to you that there is but one ground 
upon which you can justify refusal to be governed by his evidence, 
and that ground is, a conviction in your minds that he consciously 
gave false testimony. As to whether or not there are any facts or 
circumstances developed in the trial furnishing warrant for such a 
conviction, you are the sole judges. The conditions upon which jurors 
may, under the law, condemn the credibility of either party to this 
action exist in their relation to' the trial, and in the contradictions in 
the testimony. They are equally interested in the verdict to be ren¬ 
dered by you. One is seeking to gain money, and the other is en¬ 
deavoring to avoid being compelled to turn over his money to an¬ 
other. Probably the desire to escape the loss O’f money is just as 
likely to influence a man to' testify falsely as is the desire to' gain 
money. Hence, if interest were your only guide, in your effort to 
arrive at a conclusion as to whom, the plaintiff or defendant, you 
will believe, the difficulty confronting you would be almost insur¬ 
mountable. But, in connection with this, there are other tests avail¬ 
able to you. 

How did each of the parties appear to you when testifying? Did 
both speak and act like men governed by the influence of an oath to 
tell the truth, the whole truth, and nothing but the truth ? Like men 
in whom the sense of honor and the spirit of truth cannot be over¬ 
thrown by suggestions of greed and selfishness, or did you observe 
a difference in this respect? Does the application of this test pre¬ 
sent to you one party in a more favorable light than it does the other ? 
If it does, and there is nothing to' the contrary in the evidence which 
outweighs the legitimate influence of it, you have the right to’ accept 
the testimony of the party who has thus favorably impressed you, 
and to reject that of the other party. 


practice: and forms of daw and equity. 


139 


Some testimony appears in the case, on the part of the defendant, 
respecting the time when the note was transferred to Mr. Smith, and 
the circumstances attending the transaction. Of course, knowledge 
of facts affecting the rights of Mr. Foster, gained by the plain¬ 
tiff at any time before he purchased the note, would, to' that ex¬ 
tent, deprive him of the protection accorded to an innocent purchaser 
of a negotiable instrument. But we do not think that the testimony, 
in this behalf, is sufficient to establish such knowledge in the 
plaintiff. The circumstances to which it relates were, alone, 
in the conduct of Mr. Foster, and it does not appear that the plain¬ 
tiff knew of the interview between the witness Simpson and Mr. 
Foster, or of anything that was said in the interview. We, there¬ 
fore, instruct you that the only evidence upon which you are at lib¬ 
erty to find the plaintiff had knowledge of any terms or conditions 
upon which the note was given, is that concerning the conversation 
at the time the agreement was made for the purchase of the potatoes, 
and his presence thereat. 

Still, as to the contention of Mr. Foster and the defendant re¬ 
specting the agreement, we believe it proper for you to consider the 
action of Mr. Foster on that occasion. If you find that the testimony 
of Mr. Simpson is true, was the conduct of Mr. Foster consistent 
with his allegation that there was no conditions in the agreement 
that relieved the defendant from his obligation to pay to' him the 
note in question? In this behalf you have a right to inquire: Why 
did he immediately after Mr. Simpson’s visit seek to negotiate the 
note? Was it because he was conscious of any agreement he had 
with the defendant that would render him unable to recover on the 
note in his own name, or did he do this, for the reason the 
plaintiff said he gave to him, viz., that he was embarrassed, because 
he was unprovided with means to pay an obligation he had under¬ 
taken to satisfy that day ? This is a question to which you may give 
attention in your endeavor to ascertain the agreement between Fos¬ 
ter and the defendant, and in passing upon the credibility of the tes¬ 
timony of Mr. Foster. 

Finally, we say to you : First. If there was nothing in the agree¬ 
ment qualifying or limiting the obligation shown in the note, your 
verdict should be in favor of the plaintiff for one thousand dollars, 
with interest thereon from the 2nd day ol May, 1901. 

Second. If you find the agreement to be as described by the de- 


140 


PRACTICE AND FORMS OF LAW AND EQUITY. 


fendant, but that the plaintiff did not have knowledge of 
it at the time the note was transferred to' him, your verdict should 
be in favor of the plaintiff for six hundred dollars, with interest 
thereon from the 2nd day of May, 1901. 

Third. If you find that the agreement was as stated by the de¬ 
fendant, and that the plaintiff knew of its terms and con¬ 
ditions at the time the note was transferred to him, your verdict 
should be in favor of the defendant. 

Counsel for the parties have, respectively, requested us to charge 
you upon certain points. 

Number one of plaintiff’s points reads as follows: 

‘'That, whatever may have been the agreement between Foster and 
the defendant, respecting the purchase of the potatoes, or the giving 
of the note in this case, if the plaintiff, at the time he purchased said 
note, had no knowledge of anything in either of said agreements, 
in any manner qualifying or limiting the promise of the defendant, 
as expressed in the note, the plaintiff is entitled to recover in this, 
action.” 

In our general charge we have given you the instruction asked 
for in this point. The law is, undoubtedly, correctly stated in this 
proposition, and the point is, therefore, affirmed. 

Number two of plaintiff’s point is: 

‘‘That the testimony submitted on the part of the defendant to es¬ 
tablish knowledge in the plaintiff of the terms and conditions in the 
agreement between Foster and the defendant, is incompetent to 
prove such knowledge in said plaintiff.” 

We refuse to charge you as requested in this point. In our opin¬ 
ion, the testimony presented on the part of the defence is sufficient 
to justify the submission of this question to you for determination. 
This point is, therefore, negatived. 

Number three: 

“That the testimony, in behalf of the defendant, regarding the cir¬ 
cumstances attending and immediately preceding the purchase of 
the note by the plaintiff is incompetent to prove that he, the said 
plaintiff, then acquired knowledge of any terms or conditions in the 
agreement between Foster and the defendant qualifying or limiting 
the promise of the latter as expressed in said note.” 


practice: and forms of law and equity. 


141 


In our general charge we have already instructed you that the 
evidence mentioned in this point is insufficient, as matter of law, to 
prove the plaintiff gained, at the time or immediately before he pur¬ 
chased the note, knowledge of any conditions in the agreement be¬ 
tween Foster and the defendant modifying the promise contained in 
the note. That if you found any such knowledge in the plaintiff, 
you must do it alone upon the evidence respecting the transaction in 
which the defendant purchased the potatoes, and of the presence of 
the plaintiff at the same. This point is affirmed. 

Number four: 

“That, if the court rules that the evidence in this behalf is insuf¬ 
ficient to prove said knowledge in the plaintiff, or, if the question of 
fact is submitted to the jury, and they find he did not, at any time 
before the purchase of the note, have such knowledge, the plaintiff 
is entitled to recover the full amount of the note and interest.” 

We refuse to charge as requested in this point. If you find the 
agreement was as stated by the defendant, and that the plaintiff, of 
whatever he may recover in this case, is entitled to only six hundred 
dollars and interest, and the remainder, if any, belongs to Mr. Fos¬ 
ter, we again instruct you, your verdict should be for not more than 
six hundred dollars. This point is negatived. 

Defendant requests us to charge, first: 

“That, if the jury find the defendant purchased the potatoes sub¬ 
ject to the condition that they be delivered on the first day of May, 
1901, and gave the note in this case, subject to the condition that if 
the potatoes were not delivered at the time appointed for delivery, 
the note should be returned to him, and of these, or either of these 
conditions the plaintiff, before or at the time he purchased the note 
had knowledge, the plaintiff is not entitled to recover in this case.” 

In our general charge we have given you this instruction. The 
point is affirmed. 

Second: 

“That, if the jury find the terms and conditions of the agreement 
were as stated by the defendant, but are not convinced that the 
plaintiff had knowledge of the same at the time he purchased the 


142 


practice: and forms of taw AND FQUITY. 


note, nevertheless the plaintiff is not entitled to a verdict for more 
than the sum of six hundred dollers and interest thereon.” This 
point is also affirmed. 

The verdict of the jury, of course, was received, announced and 
recorded by the court clerk, first, in the book called “Court Minutes,” 
and then in the “Continuance Docket” in the prothonotary’s office. 
It was in favor of plaintiff for the sum of $671.40, or the amount 
paid by the plaintiff for the note, plus interest. 

No exceptions having been entered to the charge of the judge, 
or his rulings on points, and no motion for a new trial having been 
made, the plaintiff, on the 29th day of May, 1903, paid the sheriff 
the jury fee of $4.00, and on the same day the prothonotary, in 
obedience to praecipe of plaintiff’s attorney, entered judgment upon 
the verdict, and the day following, judgment, debt, interest and costs, 
was paid by the executor of the will of the deceased defendant, and 
thereupon the same was satisfied of record. 


PRACTICE AND EORMS OE UW AND EQUITY. 


143 


JUDGMENTS. 

Definition. The determination, decision or sentence of a court 
or of a judge. 

Kinds. As to the effect and origin of judgments there are many 
kinds. The purpose of this work, however, does not require the 
naming of more than four, viz., those founded upon verdicts, awards, 
confessions and taken by default 

Verdict. Is, as before stated, the decision of a jury of questions 
of fact. Four days after its rendition, and upon payment of four dol¬ 
lars to the sheriff, the party in favor of whom the verdict is found 
may cause judgment to be entered by delivering to the prothonotary 
a praecipe ordering entry of the same. 

Award. Is the finding in favor of one party to a suit tried be¬ 
fore one or more persons called arbitrators, and selected to act as 
such by agreement of the parties, or in the manner prescribed by 
statute. The statute gives the right to either party to compel arbi¬ 
tration of the case—the plaintiff after he has filed his declaration, 
and the defendant after he has filed his affidavit of defence. The 
exercise of this privilege involves the use of a praecipe and two 
rules. In the first rule, the party electing to have the trial before 
arbitrators, expresses his determination to arbitrate, and in the sec¬ 
ond rule, notice to> the other party to the arbitration is furnished, 
the names of the arbitrators chosen, and the time and place appointed 
for the trial. Fallowing are copies of said rules: 


144 


practice: and forms of taw and equity. 


Form of Praecipe Directing Issue of First Arbitration Rule. 


Luzernf County, ss. : 


James Madison 


vs. 


James Monroe. 


In the Court of Common Pleas of 
Luzerne County. 

Of the term of October, 1906, 
No. 525. 

And now, to wit, on the 20th day of 
November, 1906, the plaintiff enters 
a rule of reference, wherein he 
states his determination to have ar¬ 
bitrators chosen on the 6th day of 
December, 1906, at 10 o’clock in the 
forenoon, for hearing and deter¬ 
mining all matters at variance in the 
said suit between the parties. 

Wieeiam Henry Harrison, 

Attorney.. 


Form of First Arbitration Rule. 


Luzerne County, ss. : 


James Madison 


vs. 


James Monroe. 


In the Court of Common Pleas of 
Luzerne County. 

Of the term of October, 1906, 

No. 525. 

And now, to> wit, on the 20th day of 
October, 1906, the plaintiff enters a 
rule of reference, wherein he states 
his determination to have arbitra¬ 
tors chosen on the 6th day of De¬ 
cember, 1906, at 10 o’clock in the 
forenoon, for hearing and determin¬ 
ing all matters at variance in the 
suit between the parties. 

Martin Van Buren, 
Prothonotary. 


PRACTICE AND FORMS OF LAW AND EQUITY. 


145 


Form of Second Arbitration Rule. 

Luzerne County, ss. : 

The Commonwealth of Pennsylvania. 

In the Court of Common Pleas of 
Luzerne County. 

No. 525, October Term, A. D. 1906. 

I certify that, agreeable to the pro¬ 
visions of the Act of Assembly, ap¬ 
proved June 16, 1836, “Regulating 
Arbitrations,” James K. Polk, An¬ 
drew Jackson and John Quincy Ad¬ 
ams were appointed arbitrators for the trial of all matters in vari¬ 
ance in the above suit between the parties, who, or a majority of 
whom, are to make report thereon to the prothonotary of the said 
court, agreeably to the provisions of the Act of Assembly in such 
case made and provided. The said arbitrators to meet at the arbi¬ 
tration room in the Court House in Wilkes-Barre, on Tuesday, the 
20th day of December, 1906, at 9 o’clock in the forenoon. 

Certified from the records this 6th day of December, A. D. one 
thousand nine hundred and six. 

William H. Harrison, 

Prothonotary . 


James Monroe. 


vs. 


James Madison 


PRACTICE AND FORMS OF I,AW AND EQUITY. 


The indorsement on First Arbitration Rule should be as follows 


No. 525. 

October Term, 1906. 


JAMES MONROE. 


vs. 


JAMES MADISON 


FIRST RULE. 

Filed 21st October, 1906. 

Fee, $1.25. 

Paid by Plaintiff. 



PRACTICE AND FORMS OF EAW AND EQUITY. 147 

Indorsement on Second Arbitration Rule should be as follows: 


No. 525. October Term, 190G 


JAMES MADISON 

vs. 

JAMES MONROE. 


SECOND RULE AND AWARD. 


Wieeiam Henry Harrison, 

A ttorney. 




148 


practice: and forms of daw AND EQUITY. 


What Day Must Be Appointed For Choosing Arbitrators. A 

day not exceeding thirty days after the issue of the rule. 

When the First Rule Must be Served. At least fifteen days be¬ 
fore the time fixed in said rule for choosing arbitrators. 

How the Rule Must be Served. It is the duty of the party, his 
agent or attorney, entering the rule to cause a certified copy of the 
rule to be served on the opposite party, his agent or attorney, by de¬ 
livering such copy to the party personally, his agent or attorney, or, 
if the said party cannot be found, and has no agent or attorney, by 
leaving such copy at his last place of abode; and in the case of a cor¬ 
poration such copy must be served on the president, or other prin¬ 
cipal officer, cashier, secretary or chief clerk of the corporation. 

When the Time and Place of Trial Are Fixed. At the time the 
arbitrators are chosen. 

How the Time and Place of the Trial Are Determined. If pos¬ 
sible, by agreement of the parties, if not possible, by the prothon- 
otary. 

What Day Must Be Appointed For the Trial. A day not less 
than ten nor more than twenty days after the appointment of arbi¬ 
trators. 

Number of Arbitrators, and How They Are Chosen. 

On the day fixed for the appointment of arbitrators, if both par¬ 
ties attend, either in person or by their agents or attorneys, the arbi¬ 
trators shall be chosen in the following manner, viz.: 

I. The number of the arbitrators, which shall be either three or 
five, shall be fixed by the parties, or if they cannot agree, by the pro- 
thonotary: Provided, That the parties may agree to refer the cause 
to any one person whom they shall concur in choosing. 

II. If the number fixed be three, the plaintiff shall then nomin¬ 
ate one person; if five, he shall nominate two, and if all, or either, 
be objected to by the defendant, he shall nominate other persons in 
place of those objected to, until he shall have nominated six persons 
for every person so allowed by him to be nominated. 

III. The defendant shall then nominate in like manner an equal 
number of persons, subject in like manner to objection on the part 
of the plaintiff. 


PRACTICE AND FORMS OF DAW AND EQUITY. 


149 


IV. If the parties agree in the choice of arbitrators, as afore¬ 
said, the umpire shall be chosen as follows: The parties shall nom¬ 
inate alternately, beginning with the plaintiff, seven persons, the op¬ 
posite party having the right to object to the nomination, and if all 
the persons thus nominated be objected to the prothonotary shall 
nominate a suitable and disinterested person; if he be objected to he 
shall name another, and so on until he shall name seven persons, and 
if all be objected to he shall make out a list of five such persons, and 
the parties shall then strike out alternately, beginning with the plain¬ 
tiff, until the name of only one person be left, who shall be the 
umpire. 

V. If the parties cannot agree in the choice of arbitrators, as 
aforesaid, the prothonotary shall make out a list containing the names 
of five suitable and disinterested persons for each of the number of 
arbitrators, so as aforesaid fixed upon, from which list the parties 
shall strike out alternately, beginning with the plaintiff, until the 
number be left which was so fixed, and the persons so selected shall 
be the arbitrators. 

VI. If the parties agree as to one or more of the arbitrators, and 
differ as to one t or more, the like proceedings shall be had to supply 
the deficiency and complete the number of arbitrators so fixed upon. 

If only one of the parties attend on the day fixed for the appoint¬ 
ment of the arbitrators, the proceedings shall be as follows: 

I. If the party attending be the party by whom the rule of refer¬ 
ence was entered, proof shall be made that the notice was duly served 
on the opposite party in the manner hereinbefore provided, and 
the proof of the service shall be the oath or affirmation of the person 
by whom it was made. 

II. It shall be the duty of the prothonotary to fix the number of 
the arbitrators to nominate for the absent party, and to object to the 
nominations made by the party present, if he shall think it necessary. 

III. If, in such case, all the persons nominated on either side 
shall be objected to, the like proceedings shall be had for the choice 
of arbitrators as if both parties were present, except that the duties 
required to be performed by the prothonotary in such case shall be 
performed by the recorder of deeds, the sheriff, coroner or treasurer 
of the proper county. 


150 


practice: and forms of law and equity. 


The day, hour and place of meeting of the arbitrators shall be 
fixed by the parties, if present and able to agree thereupon, but other¬ 
wise it shall be the duty of the prothonotary to> determine the same: 
Provided, That in such case the day and meeting shall not be less 
than ten or more than twenty days after their appointment. 

When the Second Arbitration Rule Must Be Served. Upon the 
opposite party and the arbitrators at least ten days before the time 
appointed for the trial. 

Method of Serving the Second Arbitration Rule. A certified 
copy of the record, containing the names of the arbitrators and the 
time and place of meeting, must be served on each of the arbitrators, 
and also upon the opposite party, his agent or attorney ; but if said 
party have no agent or attorney then it is lawful to serve said certi¬ 
fied copy upon the opposite party, in the same manner as a writ of 
summons in a personal action was served on the 16th June, 1836. At 
this time a summons in a personal action was served by reading the 
same in the hearing of the defendant, or by giving him notice of its 
contents, and a true and attested copy thereof; or, if the defendant 
could not conveniently be found, by leaving such copy at his 
dwelling house, in the presence of one or more of the adult members 
of the family; or, if the defendant resides in the family of another, 
with one of the adult members of the family in which he resides. 
Service on corporation in the same manner provided for the service 
of first rule. 


Trial Before Arbitrators. 

Place and Time of the Trial. Unless changed by agreement of 
the parties the trial must be had at the time and place designated in 
the second arbitration rule. 

Oath of Arbitrators. Before the beginning of the trial the arbi¬ 
trators must be sworn or affirmed, justly and equitably, to try all 
matters in controversy submitted to them. 

Form of the Award. 

After hearing the evidence and allegations of the parties the ar¬ 
bitrators are required to make out their award, which must be signed 


PRACTICE AND FORMS OF LAW AND EQUITY. 


151 


by all of them, or a majority of them, and this award transmitted to 
the prothonotary within seven days after they have agreed upon the 
same. Following is an example of the form of the award: 

James Madison In the Court of Common Pleas of 

vs - V Luzerne County. 

James Monroe. j No. 525, October Term, 1906. 

And now, the 20th day of December, 1906, we, the arbitrators 
chosen in this case, under and in conformity to the Act of Assembly, 
approved the 16th day of June, 1836, P. L., 723, having met the par¬ 
ties, plaintiff and defendant, at the time and place duly appointed, to 
wit, in Wilkes-Barre, at the arbitration room of the Court House, 
this day at nine o’clock in the forenoon, and, after being duly sworn, 
having heard the proofs and allegations of the parties respectively, 
do award in favor of the plaintiff the sum of five hundred dollars. 

James K. Polk, 

Andrew Jackson, 

John Q. Adams, 

Arbitrators. 

Effect and Lien of the Award. It has the effect of a judgment, 
with respect to the party against whom it is made, from the time of 
the entry thereof, and is a lien upon his real estate until reversed 
upon appeal or satisfied according to law. 

Appeal from the Award. At any time within twenty days after 
the award has been entered in the prothonotary’s office, either party 
has a right to appeal from it to the Court of Common Pleas. This 
right, however, is exercisable subject to certain conditions, viz, the 
appellant must make affidavit that the appeal is not taken for the 
purpose of delay, but because he firmly believes that injustice has 
been done, pay all the costs that may have accrued in the suit, and 
furnish bail for all the costs that may thereafter be incurred. The 
form of the affidavit, and that of the recognizance in which the bail 
is furnished, are as follows: 


152 


PRACTICE AND FORMS OE EAW AND EQUITY. 


Form of the Affidavit. 


Luzerne County, ss. : 



In Common Pleas of said County: 
Of October Term, 1906. No. 525. 


James Madison 


_Judgment. 

Debt, $1,000.00. 


James Monroe. 


Enter an appeal from the award of 
arbitrators in this case on part of de¬ 
fendant. 


To Henry Waeser, Esq., 


Prothonotary. 


James Monroe, being duly sworn according to law, deposes and 
says that it is not for the purpose of delay the appeal in this case is 
taken, but because he firmly believes that injustice has been done. 


Sworn and subscribed before me this 
second day of January, 1907. 


James Monroe. 


Henry Waeser, Prothonotary. 


Form of the Recognizance. The recognizance is connected 
with the affidavit in the same blank furnished by the prothonotary. 
Its form is as follows: 

James Monroe, tent in $500.00. j 
James G. Beaine, tent in $500.00. J U ‘ ° n " 

That the above named James Monroe shall prosecute this, his 
appeal, with effect and without delay, and if he be cast therein he 
shall pay all costs that may be legally recovered against him, or in 
default thereof, that will do so for him. 

Taken and acknowledged before me, ) 
this 2nd day of January, 1907. J 

Henry Waeser, 

Prothonotary. 



PRACTICE AND FORMS OF EAW AND EQUITY. 


153 


Judgments Founded Upon Confessions. In all agreements in 
writing, in which one of the parties thereto' obligates himself to' pay 
to the other party a certain sum. of money, either at the end of a cer¬ 
tain period of time or upon the happening of certain conditions, the 
obligor may confess judgment in favor of the obligee for the amount 
he undertakes to' pay. This practice is most common in bonds, notes 
and in contracts for the sale of land. The purpose of the confession 
is to avoid the expense and delay the obligee otherwise might be sub¬ 
jected to in a law suit, and to give him the security furnished in the 
lien of a judgment entered in the Court of Common Pleas. To se¬ 
cure the entry of the judgment confessed, in this court it is only nec¬ 
essary to file the agreement in which the confession exists with the 
prothonotary, and by a praecipe direct him to enter judgment. 

Form of the Confession of Judgment. 

$500.00. Lewisburg, Pa., April 3, 1907. 

One year after date I promise to pay to Philander Hemminway, 
or bearer, five hundred dollars, with interest and without defalcation, 
for value received. And I do hereby confess judgment for the 
aforesaid sum, with interest, costs of suit, with ten per cent, attor¬ 
ney fees, if collected by legal process, releasing all errors, waiving 
inquisition, confessing condemnation, and without stay of execution. 
And I do further waive all right to the benefits of the provisions ot 
the Act of 9th of April, 1849, entitled “An act to exempt property 
to the value of three hundred dollars from levy and sale on execu¬ 
tion and distress for rent.” 

Hiram Hopeweee (Seal). 

Due April 3, 1908. 

Of course, much of the verbiage in the note is unnecessary to the 
confession of judgment. Indeed, all after the word “suit” could be 
omitted without affecting the confession. The attorney fee is pro¬ 
vided for in order to save the payee that expense in proceedings to 
collect the judgment. The waivers and releases are inserted to pre¬ 
vent delay in the collection of the same, and to deprive the drawer of 
the right to any stay of execution issued on the judgment, and of the 
right to the three hundred dollar exemption debtors are entitled to 
in this state, out of property on which execution is levied. 


154 


PRACTICE AND FORMS OF LAW AND EQUITY. 


Form of Praecipe Directing Entry of Judgment on Confession. 

Sam Huston 5 In the Court of Common Pleas 

vs. V of Snyder County. 

William Curtis, j No. 125, February Term, 1907. 

To Benjamin Young, Esq., 

Prothonotary. 

Enter judgment in this case pursuant to the tenor and effect of 
the bond hereto attached for the sum of five hundred dollars. Inter¬ 
est from first day of March, 1906. 

George Peabody, 

Attorney for Plaintiff. 

Judgments by Default. Are judgments taken for want of ap¬ 
pearance, and for want of an affidavit of defence. 

If the plaintiff has, in the meantime, filed a declaration or state¬ 
ment of his cause of action, and the defendant has failed to enter 
his appearance on the day succeeding the day appointed for the sher¬ 
iff to return the summons, he, the plaintiff, may cause judgment for 
his claim to be entered by delivering to the prothonotary a praecipe, 
of which the following is an example: 

James Garfield 1 In the Court of Common Pleas 
vs. V of Luzerne County. 

Roscoe Con kling. ) No. 3, January Term, 1907. 

U. S. Grant, Esq., 

Prothonotary. 

Enter judgment in favor of the plaintiff in the above entitled 
case, by default for want of appearance. 

James Wilson, 

Attorney for Plaintiff. 

In all actions of assumpsit wherein the plaintiff has filed a state¬ 
ment and copy of his demand, as already stated, to avoid judgment 
being taken against him by default, defendant is required to enter an 
affidavit of defence at a time specified in the statute. If the defend¬ 
ant fails to comply with this requirement at the time designated in the 


practice: and forms of taw and fquity. 


155 


law referred to, the plaintiff may cause judgment to be entered either 
upon motion in court, or by a praecipe addressed to the prothonotairy, 
of which said praecipe the following is an example: 

Benjamin Franklin | In the Court of Common Pleas 
vs. V of Luzerne County. 

John Hancock. j No. 10, January Term, 1907. 

Peyton Randolph, Esq., 

Prothonotary. 

Enter judgment in favor of the plaintiff in above entitled case 
by default for want of an affidavit of defence. 

Francis Marion, 

Attorney for Plaintiff. 

Lien of Judgments. Each of the judgments thus obtained, im¬ 
mediately upon its entry, becomes a lien against all real estate then 
owned by the defendant. In other words, it is a charge upon his 
land, from which it cannot be freed otherwise than by payment or 
by neglect on the part of the plaintiff to continue it in a proceeding 
provided by statute. Without such a proceeding the lien will not 
live longer than five years. 


Scire Facias. 

Translation. That you make known. 

Purposes for Which Writ of Scire Facias Is Used. Within the 
scope of practice to which this work is limited the writ is used for 
the following purposes: 

I. To continue and revive the lien of judgments the law of this 
State provides: “No judgment entered in any court of record shall 
continue a lien on the real estate of the person against whom such 
judgment may be entered during a longer period than five years, 
unless the person who may obtain such judgment, or his legal rep¬ 
resentatives or other persons interested, shall, within said term of 
five years, sue out a writ of scire facias to revive the same.” 

II. To reduce the debt in a mortgage to judgment in order that 
the mortgagee may, by an execution process, cause the land de¬ 
scribed in the mortgage to be sold by the sheriff to satisfy the prin¬ 
cipal and interest of the debt. 


156 


practice: and forms of taw and equity. 


III. A mechanic’s lien consists of a claim, filed in the prothon- 
otary’s office, for work and materials furnished in and about the 
construction of buildings. The scire facias is used in proceedings 
to reduce this claim to judgment. Upon the judgment the claim¬ 
ant or plaintiff may cause execution to issue against the land de¬ 
scribed in his claim. 

IV. In cities, boroughs, etc., the people, in addition to the taxes 
they pay for the support of these local governments, may be re¬ 
quired to furnish money to be used in paying for certain public im¬ 
provements. After the amount charged to each property owner is 
ascertained, to insure its collection, a municipal lien is entered against 
his land. If he does not deliver the amount of money demanded of 
him at the time appointed scire facias may be issued on the lien to 
recover judgment for the same. On this judgment the land de¬ 
scribed in the lien may be sold under an execution. To enforce and 
secure the payment of taxes the same proceeding is provided. 

How Issue of Writ of Scire Facias Is Caused. The prothon- 

otary issues the writ in obedience to the praecipe of the plaintiff, the 
form of each praecipe being as follows: 

On Judgment. 

Theodore: Tilton 1 In the Court of Common Pleas 
vs. V of Luzerne County. 

Henry Ward Beecher. | No. 75, May Term, 1906. 

Grover Cleveland, Esq., 

Prothonotary. 

Issue writ of scire facias to revive Judgment No. 60, May Term, 
1901, and to continue the lien with notice to terre-tenants, if there 
be any, returnable at next term. 

W. H. Fullerton, 

Attorney for Plaintiff. 

On Mortgage. 

Jeremiah Black I In the Court of Common Pleas 

vs. V of Luzerne County. 

Andrew G. Curtin. j No. 1234, June Term., 1906. 

David Wilmont, Esq./ 

Prothonotary. 


practice: and forms of daw and equity. 


157 


Issue writ of scire facias sur mortgage, given and executed by 
Andrew G. Curtin, dated the first day of August, A. D. 1901, re¬ 
corded in the office for the recording of deeds, etc., for the Count) 
of Luzerne, in Mortgage Book, No. 75, page 61, etc., for default of 
payment thereof. Returnable at next term. 

Henry M. Hoyt, 

Attorney for Plaintiff. 


On Mechanic’s Lien. 

Edmund L. Dana 
vs. 

Lyman H. Bennett. 


In the Court of Common Pleas 
of Luzerne County. 

No. 2562, October Term, 1906. 


G. M. Harding, Esq., 

Prothonotary. 


Issue scire facias sur mechanic’s lien, No. 10, Mechanic’s Lien 
Docket, page 342. 


Edward P. Darting, 

Attorney for Plaintiff. 


With the last above praecipe the plaintiff is required to file an 
affidavit, by himself, his agent or attorney, setting forth that he has 
caused inquiries to be made in the neighborhood of the property, of 
at least three of those residing upon or nearest thereto, whose names 
and residences are given and the dates of the inquiries stated, and 
that he believes the persons named by him in such affidavit are the 
real owners of said property. 

Following is the form of 

Edmund L. Dana ^ 

vs. > 

Lyman H. Bennett. j 

Luzerne County, ss. : 

Edmund L. Dana, the above named plaintiff, being duly sworn, 
says that he did on the first day of October, 1906, cause inquiries to 


the affidavit: 


In the Court of Common Pleas 
of Luzerne County. 

No. 2562, October Term, 1906. 


158 


practice: and forms of daw AND EQUITY. 


be made of Horatio King, H. S. McFadden and John B. Floyd, re¬ 
siding, respectively, in the City of Wilkes-Barre, in said county, on 
North Meade Street, at Nos. 425, 427 and 428, and upon and nearest 
to the property described in mechanic’s lien entered o«f record in the 
prothonotary’s office of said county, in Mechanic’s Lien Docket No. 
10, page 342, and referred to in plaintiff’s praecipe in this case, and 
that he believes Samuel Arnold, of the said city, and residing at No. 
45 South Sherman Street, is the real owner of said property. 


Edmund L. Dana. 


Sworn and subscribed before me this 
second day of October, 1906. 

S. W. Trimmer, 

Prothonotary. 


On Municipal Lien. 


City of Harrisburg 
vs. 

Oscar Nicholson. 


In the Court of Common Pleas 
of Luzerne County. 

No. 1645, December Term, 1906. 


John T. L. Sahm, Esq., 

Prothonotary. 


Issue scire facias sur municipal lien No. 45, City Municipal Lien 
Docket, No. 12, to revive and continue the lien thereof. Returnable 
to next term. 

Charles F. McHugh, 
Attorney for Plaintiff. 


If no defense is made to the demand of the plaintiff in the writ 
judgment is entered to the number and term given in the contin¬ 
uance docket, and in the praecipe pursuant to which the writ was 
issued, both in the continuance docket and the judgment index. If 
the plaintiff’s action is resisted the contention thus arising must be 
determined in the same manner as if the proceeding were in an 
action of assumpsit. 


practice; and forms of law AND EQUITY. 


159 


Writs Ordered. 

Sur Judgment. 

Luzerne County, ss. : 

The Commonwealth of Pennsylvania: 

To the Sheriff of said County, Greeting: 
Whereas, Theodore Tilton, heretofore in our Coun¬ 
ty Court of Common Pleas of Luzerne County, to wit, 
in the term of May, 1901, before our judges at Wilkes- 
Barre, by the consideration of the same court recov¬ 
ered against Henry Ward Beecher, late of the said county, yeoman, 
as well a certain debt of three thousand dollars, like money which to 
our said plaintiff in our said court were adjudged for his damages, 
which he sustained by occasion of the detention of that debt, whereof 
the said defendant is convict, as by the record and proceeding 
thereupon in our said court, before our judges at Wilkes-Barre re¬ 
maining, manifestly appears. Nevertheless, execution of the judg¬ 
ment aforesaid as yet remains to be done, as by the insinuation of 
the said Theodore Tilton we have received, and whereas, five years 
are nearly expired since the said judgment was obtained, and the 
lien on the real estate of the said Henry Ward Beecher would after 
that time be lost unless the said judgment was revived, we do, there¬ 
fore, command you that by honest and lawful men of your bailiwick 
you make known to the said Henry Ward Beecher that he be and 
appear before our judges at Wilkes-Barre, at any County Court of 
Common Pleas, there to be held in and for the County of Luzerne, 
the first Monday of March next, to show if anything he knows or 
has to say why judgment recovered by the said Theodore Tilton 
against him, the said defendant, as aforesaid, ought not to be re¬ 
vived and continue a lien on his real estate during another period 
of five years, according to the act of general assembly in such case 
made and provided, if to us it shall seem expedient. And have you 
then and there the names of those by whom you shall make it known 
to and this writ. 

Witness the Hon. John Lynch, President Judge of our said court 
at Wilkes-Barre, the first day of March, in the year of our Lord one 
thousand nine hundred and six. 

Grover Cleveland, 

Prothonotary. 



1G0 


practice: and forms of law AND EQUITY. 


Sur Mortgage. 


Luzerne County, ss.: 


The Commonwealth of Pennsylvania: 

To the Sheriff of said County, Greeting: 
Whereas, in and by a certain indenture made the 
first day of August, A. D. one thousand nine hundred 
and one, and recorded the second day of August, A. D. 
1901, in Mortgage Book, No. 145, page 132, between 



Jeremiah Black, of the County of Lackawanna, and Andrew G. Cur¬ 
tin, of the County of Lackawanna, reciting that whereas the said 
Andrew G. Curtin, in and by his certain obligation or writing oblig¬ 
atory, under his hand and seal duly executed, bearing even date 
therewith, stands bound unto the said Jeremiah Black in penal sum 
of ten thousand dollars, conditioned for the payment of five thou¬ 
sand dollars and fifty cents unto the said Jeremiah Black, together 
with the appurtenances, to have and to hold the same unto the said 
Jeremiah Black, his heirs and assigns, to his and their only proper 
use and behoof forever. And in and by the said indenture it was 
provided always, nevertheless, that if*'the said Andrew G. Curtin, his 
heirs, executors, administrators or assigns, should and did well and 
truly pay or cause to be paid unto the said Jeremiah Black, his ex¬ 
ecutors, administrators or assigns, the aforesaid sum of five thousand 
dollars on the days and times thereinbefore mentioned and appointed 
for the payment thereof, together with the lawful interest therefor, 
without any fraud or any further delay, and without any deduction, 
defalcation or abatement to be made of anything for in respect of 
any taxes, charges or assessments whatsoever, then and from thence¬ 
forth as well as the said indenture and the estate thereby granted as 
the said recited obligation should ease, determine and become void, 
anything therein contained to the contrary in any wise notwith¬ 
standing. 

And whereas, the said sum of five thousand dollars, with the in¬ 
terest thereof, as yet remains unpaid, as we have been given to un¬ 
derstand, and the said Jeremiah Black praying that a fit remedy in 
this behalf may be provided, we command you, that by good and 
lawful men of your bailiwick, you make known to the said Andrew 
G. Curtin that he be and appear before our judges at Wilkes-Barre, 


practice: and forms of daw and fquity. 


161 


at our Court of Common Pleas for the County ol Luzerne, there to 
be held on the first Monday of June next, to show if anything he 
knows or has to say why the said mortgaged premises, with the ap¬ 
purtenances, ought not to be taken in execution and sold to satisfy 
the debt and interest aforesaid, if to> him, it shall seem expedient. 
And have you then and there the names of those by whom you shall 
so make it known to and this writ. 

Witness the Hon. John Lynch, President Judge of said court, of 
Wilkes-Barre, the first day of May, in the year of our Lord 1 one 
thousand nine hundred and six. 

Hfnry M. Hoyt, 

Prothonotary. 


Sur Mechanic’s Lien. 

Luzerne: County, ss. : 

The: Commonwealth of Pennsylvania: 

Toi the Sheriff of said County, Greeting: 
Whereas, Edmund L. Dana had filed a claim in our 
County Court of Common Pleas for the County of 
Luzerne, against Lyman H. Bennett, owner, or re¬ 
puted owner, for the sum of two thousand dollars for 
work and labor done and performed, and materials furnished to or 
in a certain structure, to> wit: Three-storied brick building, 26 feet 
in width, 60 feet in depth and 26 feet high, and located on a lot or 
piece of ground situate in the Borough of Ashley, Luzerne County, 
Pennsylvania, bounded and described as follows: Beginning at the 
southeast corner of lot numbered forty-eight, on the north side of 
Wood Avenue, thence northerly at right angles to said Wood Av¬ 
enue one hundred and fifty-eight feet, more or less, to a corner on 
the west side of Cook Street; thence southeasterly along the west 
side of said Cook Street sixty-eight feet, more or less, to a corner; 
thence southerly one hundred and fifteen feet, more or less, to corner 
on the north side of Wood Avenue; thence westerly along the north 
line of said Wood Avenue sixty-four feet to the place of beginning. 
Containing seven thousand and seven hundred and sixty-eight square 
feet of land, more or less, and being lot numbered forty-nine in 
Block “K,” on plot of lots laid out in said borough by the Lehigh 
and Wilkes-Barre Coal Company, and whereas, it is alleged that the 



162 


PRACTICE AND EORMS OE EAW AND EQUITY. 


said sum still remains due and unpaid to the said Edmund L. Dana, 
now we command you that you make known to the said Lyman H. 
Bennett that he be and appear before the judges of our said court, 
at a Court of Common Pleas to be held at Wilkes-Barre on the first 
Monday of November next, to show if anything he know or has to 
say why the said sum of two' thousand dollars should not be levied 
of the said structure to the use of the said Edmund L. Dana,, accord¬ 
ing to the form decree and effect of the act of assembly in such case 
made and provided, if him it shall seem expedient. And have 
you then and there this writ. 

Witness the Hon. John Lynch, President Judge of our said court, 
at Wilkes-Barre, the 29th day of September, in the year of our Lord 
one thousand nine hundred and six. 

Paul Dasch, 

P rot hon otary. 

Sur Municipal Lien. 

Luzerne County, ss. : 


The Commonwealth oe Pennsylvania: 



To John Everready, Greeting: 
Whereas, the City of Pittston, claimant, on the 10th 
day of January, A. D. 1904, filed its claim in our Court 
of Common Pleas of Luzerne County, of February 
Term, 1904, No. 2, M. L. D., against you as follows: 


City oe Pittston 
vs. 

John Everready. 


Under and by virtue of an act 
of assembly, entitled ‘‘An act 
| providing when, how, upon what 

J property and to what extent 

liens shall be allowed for taxes and for municipal improvements, 
and for the removal of nuisances,” etc., approved June 4, 1901, and 
all other acts of assembly relating thereto, the City of Pittston files 
this its claim for $150.00 against the hereinafter described property, 
with the improvements thereon, and sets forth the following speci¬ 
fications of claim: I. The name of the party claimant is the said 
City of Pittston. II. The name of the owner or reputed owner 
against whom this claim is filed is John Everready. III. The prop¬ 
erty against which said claim is filed is described as follows: All 
that certain lot or parcel of land situate in the Tenth Ward oif the 


PRACTICE AND FORMS OF LAW AND EQUITY. 


163 


said City of Pittston, bounded on the north by Main Street, on the 
east by land of Erie Coal Company and L. & W. V. R. R. Company, 
on the south by lands of Sam Patch, being known as No. 75 Plank 
Street, and having a frontage on said street of 80 feet, and depth of 
150 feet, and on which are the following improvements: A three- 
story brick dwelling house and wooden outbuildings. IV. The 
work for which this claim is filed was done under and by virtue of 
the several acts of assembly governing cities of the third class, to 
wit: Act of May 23, 1889, P. L., 277; Act of May 16, 1891, P. L., 
75, and the several supplements to said acts, and an ordinance of the 
said City of Pittston, approved 26th January, 1897. V. The work 
in front of said property, against which this claim is filed, was com¬ 
pleted on 29th November, 1905, as certified by the supervising com¬ 
missioner, filed in the office of street commissioner. VI. The kind 
and character of the work for which this claim is filed is the laying 
of sidewalk on South Main Street, on the northwest side thereof, in 
front of the above described property. 

All notices prescribed by law or ordinance were duly given to 
the above named owner by the mayor and street commissioner. The 
amount of the assessment for which this claim is filed is as follows: 
750 square feet at 20 cents, equals $150.00. 

The City of Pittston, 

By Geo. F. O’Brien, 
Solicitor. 

And whereas, we have been given to understand that said claim 
is still due and unpaid, and remains as a lien against said property. 

Now, you are hereby notified to file your affidavit of defence to 
said claim, if defence you have thereto, in the office of the prothon- 
otary of our said court within fifteen days after service of this writ 
upon you. 

If no affidavit of defence be filed within said time, judgment may 
be entered against you for the whole of said claim, and the property 
described in the claim to be sold to recover the amount thereof. 

Witness the Honorable H. A. Fuller, President Judge of our 
said court, the first day of September, A. D. 1907. 

Henry Walser, 

Prothonotary. 


164 


PRACTICE) AND PORMS OP PAW AND PQUITY. 


Indorsement on writ of scire facias to revive and continue lien 
of judgment should be as follows: 


No. 75. May Term, 1906. 

THEODORE TILTON 

vs. 

HENRY WARD BEECHER. 

SCI. FACIAS TO REVIVE JUDGMENT. 

To-190 

Shpripp’s Costs. 

Docket Entry_$_ 

Travel__ 

Service ____ 

Copies__ 

Total_$_ 

Paid by Attorney. 

Jonathan R. Davis, Sheriff. 

W. H. Fuldprton, Attorney. 









PRACTICE AND FORMS OF LAW AND EQUITY. 165 

Indorsement on writ of scire facias sur mortgage should be as 
follows: 


No. 1234. June Term, 1906. 

JEREMIAH BLACK 
vs. 

ANDREW G. CURTIN. 

SCI. FA. SUR MORTGAGE. 

To_190 

Sheriff’s Costs. 

Docket Entry_$_ 

Travel__ 

Service ___ 

Copies__ 

Total_$_ 

Paid by H. M. Hoyt, Attorney for Plaintiff. 

WiE elam Penn Kirkendaee, Sheriff. 

Henry M. Hoyt, Attorney. 










166 


practice: and forms of law AND EQUITY. 


Indorsement on writ of scire facias sur mechanic’s lien should be 
as follows: 


No. 2562. October Term, 1906. 

EDMUND L. DANA 
vs. 

LYMAN H. BENNETT. 

SCI. FA. SUR MECHANICS LIEN. 

To___19 

Sheriff’s Costs. 

Docket Entry_$_ 

Travel-- 

Service __ 

Copies__ 

Total___$_ 

Paid by Edward P. Darling. 

J. B. Stark, Sheriff. 
Edward P. Darling, Attorney. 









PRACTICE AND FORMS OF LAW AND EQUITY. 167 

Indorsement on writ of scire facias sur municipal lien should be 
follows: 


No. 1645. December Term, 1906. 


CITY OF HARRISBURG 

vs. 

OSCAR NICHOLSON. 


SCI. FA. SUR MUNICIPAL LIEN. 


To. 


Charees F. McHugh, Attorney. 





1G8 


PRACTICE AND FORMS OF LAW AND EQUITY. 


EXECUTION. 

Definition. Execution is a judicial writ issuing out of the court 
where the record is on which the writ is founded. 

How Issue of the Writ Is Caused. By a praecipe addressed to 
the prothonotary. 

To Whom Writ Is Directed. Those issued in courts of record 
are directed to the sheriff, and in very rare cases to» the coroner. 

Name of Each Kind of Execution. Fieri Facias, Levari Facias, 
Venditioni Exponas, Habere Facias Possessionem, Attachment-Exe¬ 
cution, Capias Ad Satisfaciendum. 

Fieri Facias. 

Translation. Cause to be made. 

Command in the Writ. The sheriff is commanded to cause to 
be made, out of the goods or lands of the defendant, the amount of 
the plaintiff’s judgment. In other words, the writ directs the seizure 
of either or both land and goods. 

When Sheriff May Sell Land Under a Fieri Facias. When de¬ 
fendant in the writ waives inquisition. 

Inquisition. Is an inquest for the purpose of ascertaining 
whether the rents and profits of the land will be sufficient to satisfy, 
within seven years, the judgment of the plaintiff. This question is 
determined by a jury of six men. If they find the rents and profits 
are sufficient for said purpose the time for payment of the judgment 
is extended seven years, upon condition, however, that the defend¬ 
ant pay annually to the plaintiff a certain amount designated by the 
jury. But if the jury find that the rents, etc., will not pay the judg¬ 
ment in seven years the plaintiff may cause a writ of venditioni ex¬ 
ponas to be issued. 


PRACTICE AND FORMS OF DAW AND EQUITY. 


169 


Venditioni Exponas. 

Translation. That you expose to sale. 

Command in the Writ. By this writ the sheriff is directed to 
expose to sale the property therein described. 

Levari Facias. 

Translation. That you cause to be levied. 

Use of the Writ. It is the writ used for collecting specific 
charges upon land. Chiefly these charges are imposed in mortgages, 
mechanics’ liens and municipal liens. No property of the defendant 
other than land can be sold by virtue of this writ. 

Habere Facias Possessionem. 

Translation. That you cause to take possession. 

Use of this Writ. This writ is issued upon judgment recovered 
in an action of ejectment. 

Command in the Writ. The sheriff is directed “that justly and 
without delay the aforesaid Stephen Clearweather (the plaintiff), 
his possession of and in the premises aforesaid, with the appurte¬ 
nances, you cause to have, and how you shall have executed this 
writ make known to our judges.” 

Capias Ad Satisfaciendum. 

Translation. That you take (defendant) to make satisfaction. 

Use of this Writ. May be used to collect judgments recovered 
in actions for fines and penalties, on promise to marry, for moneys 
collected by a public officer, for misconduct or neglect in office or in 
any professional employment, and in actions for tort. 

Command in the Writ. The sheriff is directed to arrest the de¬ 
fendant and detain him in custody till he satisfy the judgment. 

Attachment-Execution. 

Use of. This writ is an execution process used to secure for the 
plaintiff in a judgment, stocks owned by the defendant, debts due 


170 


PRACTICE AND FORMS OF EAW AND EQUITY. 


to him, deposits of money made by him, and goods and chattels 
pawned, pledged and demised by him. 

Against Whom Issued. The writ is issued against the defend¬ 
ant in the judgment on which it is founded, and the person owing 
the debt to the defendant, holding his stock, with whom his money 
is deposited, or the goods and chattels are pawned, pledged or de¬ 
mised. The former is called, in this proceeding, defendant and the 
latter garnishee. 

Following is the form of each praecipe used for each of the fore¬ 
going writs: 

For Fieri Facias. 

In the Court of Common Pleas 



of Luzerne County. 

No. 3, January Term, 1907. 


U. S. Grant, Esq., 

Froth onotary. 



For Venditioni Exponas. 



In the Court of Common Pleas 
of Luzerne County. 

No. 3, January Term, 1907. 


U. S. Grant, Esq., 

Prothonotary. 



PRACTICE AND FORMS OF TAW AND EQUITY. 


171 


For Levari Facias. 

Benjamin Frankun 
vs. 

John Hancock. 


In the Court of Common Pleas 
of Luzerne County. 

No. 10, January Term, 1906. 


Peyton Randoeph, Esq., 

Prothonotary. 

Issue writ of levari facias in the above entitled case. Return¬ 
able at next term. 

Francis Marion, 

Attorney for Plaintiff. 

For Habere Facias Possessionem. 

Boston Corbett | In the Court of Common Pleas 

vs . V of Lawrence County. 

J. Wiekes Booth. I No. 756, December Term, 1906. 


Issue habere facias possessionem. Returnable at next term. 


To Castee Thetnder, Esq., 
Prothonotary. 


John A. Dix, 

Attorney for Plaintiff. 


Generally the plaintiff includes in this praecipe an order for a 
writ of fieri facias for the collection of costs. 


For Capias Ad Satisfaciendum. 

Anthony Wayne ) In the Court of Common Pleas 

vs. V of Luzerne County. 

Benedict Arnoed. j No. 342, May Term, 1903. 

Nathaniel Green, Esq., 

Prothonotary. 

Issue fieri facias with clause capias ad satisfaciendum in the 
above entitled case. Returnable at next term. 

John Paulding, 

Attorney for Plaintiff. 


172 


practice: and forms of LAW AND FQUITY. 


For Attachment-Execution. 


Edward Gibbon 
vs. 

William Wert, 
and 

David Hume, and 
R. B. Shfridan, 
Garnishees. 


In the Court of Common Pleas 
of Lehigh County. 

No. 19, September Term, 1901. 


John Pifrpont, 

Prothonotary. 

Issue attachment-execution against the defendant, and indorse 
the same with direction to the sheriff to attach, all and singular, the 
goods and chattels, rights and credits, moneys and property of the 
defendant, in whose hands the same may be, and specially in the 
hands of David Hume and R. B. Sheridan, and to summon them as 
garnishees. Returnable at next term. 

David Patrick, 

Attorney for Plaintiff. 

Following are the writs issued in obedience to above praecipes. 


Luzerne County, ss. : 


The Commonwealth of Pennsylvania: 

To the Sheriff of said County, Greeting: 
We command you that the goods and chattels, lands 
and tenements of Roscoe Conkling, late of your county, 
yeoman in your bailiwick, you cause to be levied, as 
well as a certain debt of two thousand dollars, which 
James Garfield, lately in your County Court of Common Pleas of 
Luzerne County, before our Judges at Wilkes-Barre, recovered 
against him as twenty dollars, which in our said court were adjudged 
for his damages, which he sustained by occasion of the detention 
of that debt. And have you these moneys before our judges at 
Wilkes-Barre, at our County Court of Common Pleas, there to be 
held for the County of Luzerne, on the first Monday of February 
next, to render the said plaintiff for his debt and damages afore- 


practice; and forms of law and equity. 


173 


said, whereof the said defendant is convict, as appears of record, 
etc., and have you then and there this writ. 

Witness the Honorable John Lynch, President Judge of our said 
court at Wilkes-Barre aforesaid, the second day of January, A. D. 
one thousand nine hundred and seven. 

U. S. Grant, 

Prothonotary. 

Venditioni Exponas. 


Luzerne County, ss.: 


The Commonwealth of Pennsylvania: 

To the Sheriff of said County, Greeting: 
Whereas, by your writ of fieri facias bearing teste 
at Wilkes-Barre, the second day of January, 1907, we 
command you that of the goods and chattels, lands 
and tenements of Roscoe Conkling, late of your coun¬ 
ty, in your bailiwick, you cause to be levied as well a certain debt of 
five thousand dollars, which James Garfield, lately in our County 
Court of Common Pleas of Luzerne County, before our judges at 
Wilkes-Barre, recovered against him as twenty dollars, which in our 
said court were adjudged for his damages, which he sustained by 
occasion of the detention of that debt. And that you should have 
those moneys before our judges at Wilkes-Barre aforesaid, at our 
Court of Common Pleas, there to* be held for the County of Luzerne, 
the first Monday of February then next, to render to the said plain¬ 
tiff his debt and damages aforesaid, whereof the said defendant is 
convict, etc. At which day, before our judges at Wilkes-Barre 
aforesaid, you returned that by virtue of said writ to you directed 
you had seized and taken in execution (here the land upon which the 
fieri facias was levied is described), with the appurtenances, which 
said tract of land and premises remained in your hands unsold for 
want of buyers so that you could not have the moneys in said writ 
named, at the day and place therein contained, to render to the said 
plaintiff his debt and damages aforesaid, as by said writ you are 
commanded. And that the residue of the execution of the said writ 
appeared in a schedule thereunto annexed, by which schedule of in¬ 
quisition it appears that the rents, issues and profits of the premises 


174 


PRACTICE AND FORMS OF LAW AND EQUITY. 


are not of a clear yearly value, beyond all repairs, sufficient within 
the space of seven years, to satisfy the debt and damage in said writ 
mentioned. 

Therefore, we command you that the said lot of land, with the 
appurtenances, by you so seized and taken, you expose to sale, and 
that you have that money before our judges at Wilkes-Barre afore¬ 
said, at our County Court of Common Pleas, there to be held on the 
first Monday of April next, to render the said plaintiff his debt and 
damages aforesaid. And have you then and there this writ. 

Witness the Hon. John Lynch, President Judge of our said court, 
the 15th day of February, A. D. one thousand nine hundred and 
seven. 


Levari Facias. 


U. S. Grant, 

Prothonotary. 


Luzerne County, ss.: 

The Commonwealth of Pennsylvania: 

To the Sheriff of said County, Greeting: 
We command you, that without any other writ from 
us, of the lands and tenements which were of Edward 
M. Paxson, late of your county, to wit: Of a certain 
(here the land conveyed in the mortgage is described), 
together with the hereditaments and appurtenances, in your baili¬ 
wick, you cause to be levied as well a certain debt of two thousand 
dollars, with the lawful interest thereon from the second day of 
June, 1906, as also fifteen dollars like money for costs, which sum 
of two thousand dollars, with the interest and cost aforesaid, Daniel 
Agnew, lately in our County Court of Common Pleas, before our 
judges at Wilkes-Barre, by the consideration of the same court, re¬ 
covered against the said Edward M. Paxson, of the said messuage, 
etc., with the appurtenances, to be levied by the default of the said Ed¬ 
ward M. Paxson, in not paying the said sum of two thousand dol¬ 
lars, with the lawful interest thereof, at the day and time when the 
same ought to have been paid, according to the form and effect of 
the act of assembly of the State of Pennsylvania, in such case made 
and provided; and have you those moneys before our judges at 
Wilkes-Barre, at our County Court of Common Pleas, there to be 
held the second Monday of March next, to render unto the said 



PRACTICE AND FORMS OE LAW AND EQUITY. 


175 


Daniel Agnew for debt, interest and damages aforesaid, whereof 
the said defendant is convict, as appears of record, etc., etc. And 
have you then and there this writ. 

Witness the Honorable John Lynch, President Judge of our said 
court, at Wilkes-Barre aforesaid, the 15th day of January, A. D. one 
thousand nine hundred and seven. 

James Monroe, 

Pro t ho notary. 

Habere Facias Possessionem. 


Lawrence County, ss. : 

The Commonwealth of Pennsylvania: 

To the Sheriff of said County, Greeting: 
Whereas, Boston Corbett, lately, that is to say, in the 
Term of December, 1906, No. 756, in our County 
Court of Common Pleas of the County of Lawrence, 
before our judges at New Castle, recovered against J. 
Wilkes Booth, late of your county, a certain tract of land, to wit: 
(Here the land is described.) 

Therefore we command you, that justly and without delay, the 
aforesaid plaintiff, Boston Corbett, possession of and in the tene¬ 
ments and premises aforesaid, with the appurtenances, you cause to 
have, etc. 

And we also command you, that of the goods and chattels, lands 
and tenements of the said defendant in your bailiwick, you cause to 
be levied the sum of twenty-five dollars, which to the said plaintiff, 
in our said court, were adjudged for his damages, which he sus¬ 
tained by occasion of the trespass and ejectment aforesaid. And 
have you these moneys before our said court, to be held at New 
Castle, for the County of Lawrence, on the first Monday of Feb¬ 
ruary next, to render to the said plaintiff his damages aforesaid, 
whereof the said defendant is convict, etc. And have you then and 
there this writ, and how you shall have executed the same, make 
known to the judges of our court. 

Witness the Honorable Peleg Gibson, President Judge of our 
said court, at New Castle, this 31st day of December, one thousand 
nine hundred and seven. 

Castle Thunder, 

Prothonotary. 


176 


practice: and forms of daw AND EQUITY. 


Capias Ad Satisfaciendum. 

Luzerne County, ss. : 

The Commonweaeth of Pennsylvania: 

To the Sheriff of said County, Greeting: 
We command you, that the goods and chattels, lands 
and tenements of Benedict Arnold, late of your county, 
yeoman in your bailiwick, you cause to be levied as 
well as a certain debt of ten thousand dollars, which Anthony Wayne, 
lately in your County Court of Common Pleas of Luzerne County, 
before our judges at Wilkes-Barre, recovered against him as fifty 
dollars, which in our court were adjudged for damages, which An¬ 
thony Wayne sustained by occasion of the detention of that debt. 
And have you these moneys before our judges at Wilkes-Barre, at 
our County Court of Common Pleas, there to be held for the County 
of Luzerne, on the first Monday of June next, to render to the said 
plaintiff for his debt and damage aforesaid, whereof the said de¬ 
fendant is convict, as. appears of record, etc., and if you cannot 
cause the said moneys to be levied as aforesaid, then we command 
you that you have the body of said Benedict Arnold before our said 
judges of our court, there to be held the day and year aforesaid, and 
have you then and there this writ. 

Witness the Honorable John Lynch, President Judge of said 
court, at Wilkes-Barre, the first day of February, in the year of our 
Lord one thousand nine hundred and four. 

Nathaniel Green, 

Prothonotary. 

Attachment-Execution. 

Luzerne County, ss. : 

The Commonwealth of Pennsylvania: 

To the Sheriff of said County, Greeting: 
We command you, that you levy and attach the 
goods and chattels, debts and money of William Wert, 
late of your county, in satisfaction of a certain judg¬ 
ment obtained at our Court of Common Pleas of said 
county, at the said suit of Edward Gibbon against the said William 
Wert, to September Term, 1901, No. 19, for the sum of five hun- 




PRACTICE AND FORMS OF DAW AND EQUITY. 


177 


drecl dollars, with interest from the 15th day of September, 1901, 
and costs. And also by honest and lawful men of your bailiwick 
you make known to the said William Wert, and to Daniel Hume 
and R. B. Sheridan, late of your county, that they be and appear 
before our said court at Wilkes-Barre, the first day of March next, 
to show if anything they have to say why the said judgment, besides 
cost of suit, should not be levied of the effects of the said William 
Wert, in the hands of the said David Hume and R. B. Sheridan, and 
have you then and there this writ. 

Witness the Honorable John Lynch, President Judge of our said 
court, at Wilkes-Barre, the 10th day of January, A. D. one thousand 
nine hundred and six. 

John Pierpont, 

Prothonotary. 


178 


practice: and forms of daw AND FQUITY. 


Indorsement on writ of fieri facias should be as follows 


No. 3. January Term,, 1907. 

JAMES GARFIELD 

vs. 

ROSCOE CONKLING. 

FI. FA. 

Returnable to 

_Term, 19 

Debt Penal_$_ 

Debt Real __ 

Attorney’s Commission__ 

Prothonotary__ 

Commission __ 

Attorney____ 

Orphans’ Court__ 

Sheriff _ 

Arbitrators__ 

Interest__ 

No._ 19_ 














practice: and forms of daw AND EQUITY. 179 

Indorsement on writ of venditioni exponas should be as follows: 


No. 3. January Term, 1907. 

JAMES GARFIELD 

vs. 

ROSCOE CONKLING. 

R. E. VEND. EX. 

Returnable to 

_Term, 19 

Debt _$_ 

Prothonotary__ 

Commission __ 

Attorney__ 

Sheriff __ 

Arbitrators__ 

Orphans’ Court___ 

Interest _ _ 

No._ 19_ 













180 


PRACTICE AND FORMS OF EAW AND EQUITY. 


Indorsement on writ of levari facias should be as follows 


No. 10. January Term, 1907. 

BENJAMIN FRANKLIN 
vs. 

JOHN HANCOCK. 

LEVARI FACIAS SUR MORTGAGE. 

ReturnabeE to 

__ Term, 190—. 

Debt _$_ 

Prothonotary__ 

Commission __ 

Attorney__ 

Sheriff __ 

Arbitrators__ 

Orphans’ Court__ 

Interest__ 

Francis Marion, Attorney. 

No.- Term, 190__. 












PRACTICE) AND PORMS OP PAW AND EQUITY. 181 

Indorsement on habere facias possessionem should be as follows: 


No. 756. December Term, 1906. 

BOSTON CORBETT 

vs. 

J. WILKES BOOTH. 

HAB. FA. 

Returnable to 

-Term, 190__. 

Debt_Land. 

Prothonotary_$_ 

Commission __ 

Attorney__ 

John A. Dix, Attorney. 
No._ 190__. 









182 


PRACTICE AND FORMS OF LAW AND EQUITY. 


Indorsement on writ of fieri facias with clause capias ad satis¬ 
faciendum should be as follows: 


No. 342. May Term, 1903. 

ANTHONY WAYNE 
vs . 

BENEDICT ARNOLD. 

FI. FA. CL. CA. SA. 

Returnable to 

_Term, 190__. 

Debt Penal_$- 

Debt Real ___ 

Attorney’s Commission__ 

Prothonotary__ 

Commission __ 

Attorney__ 

Orphans’ Court__ 

Sheriff __ 

Arbitrators__ 

Interest _ _ 

Nathaniel Green, Attorney. 
No._ Term, 190__. 














PRACTICE AND FORMS OF DAW AND EQUITY. 183 

Indorsement on writ of attachment-execution should be as fol¬ 
lows : 


No. 19. September Term, 1891 

EDWARD GIBBON 

vs. 

WIELIAM WERT. 

ATTACHMENT-EXECUTION. 

To_Term, 189__. 

Sheriff’s Costs. 

Docket Entry_$_ 

Travel__ 

Service __ 

Copies__ 

$ - 

Paid by Plaintiff’s Attorney. 

John Brown, Sheriff . 
John Smith, Attorney. 










184 


PRACTICE AND FORMS OF LAW AND EQUITY. 


RECORDER OF DEEDS. 

The journey is finished in the case begun in the Court of Common 
Pleas, in which the plaintiff has availed himself of all the methods 
provided for the commencement of an action, trial of the issue in¬ 
volved therein, the obtainment of judgment, the preservation of the 
lien of the judgment, and for the collection of the same. In one 
proceeding heretofore given it is already shown that the recorder’s 
office is so connected with the prothonotary’s office and the Court of 
Common Pleas, that the lawyer and the one who undertakes, as a 
stenographer, to serve him in his practice in said court, should have 
knowledge of its organization, records, etc. Further information in 
this behalf will greatly emphasize appreciation of the need of this 
knowledge. 

The statute, in which the office was created, gives to it the name, 
“the office for recording deeds,” and to the person elected or ap¬ 
pointed to exercise its powers and perform its duties, “recorder.” 
Deeds, however, are not the only instruments that may be recorded 
in this office. Besides deeds the law authorizes the recording of the 
following papers: 

Mortgages, patents granted by the Commonwealth, release or any 
instrument, being evidence of the payment or satisfaction oif a legacy 
charged upon lands; release or other instrument given to any execu¬ 
tor, administrator, assignee, trustee or guardian ; release or other 
instrument, being evidence of the payment or release of any legacy 
or recognizance charged upon lands; receipt for taxes on unseated 
lands, letters of attorney, soldier’s discharge, plots of land, assign¬ 
ments of mortgages, charters of corporations, commissions, limited 
partnership certificates. 

In order that the nature and form 1 of each of these instruments 
may be understood, we give, first, a definition of each, and, second, 
a copy of each. 

Deed. Is a writing on parchment or paper, in which one person 
conveys to another his estate or interest in land. In other words, it 


PRACTICE AND FORMS OF EAW AND EQUITY. 


185 


is a writing which evidences the transfer of one’s ownership of land, 
or interest therein, to another. The party who makes the transfer 
is called grantor,” and the one to 1 whom the estate or interest is 
transferred is called “grantee.” 

Patent from the Commonwealth. A conveyance by the State of 
a portion of the public lands. 

Mortgage. This is an instrument used to secure to one person 
from another the payment of a debt, by vesting in the former some 
property or interest of the latter, subject to a right in him to redeem 
or buy it back by paying the debt within a certain period of time. The 
maker or debtor in the mortgage is called “mortgagor,” and the per¬ 
son to whom the payment is secured, “mortgagee.” The mortgage 
is generally accompanied by a bond, in which the maker is called 
“obligor,” and the payee “obligee.” 

Release of Legacy. Is a paper discharging the person, through 
or by whom the legacy is payable, from liability on account of the 
same. In other words, the person to whom it is payable, called “leg¬ 
atee,” confesses in this paper that it has been paid, or in some other 
manner satisfied. A legacy is a gift of personal property by will. 

Release of Executor, Administrator, Assignee, Trustee or 
Guardian. This release discharges the representatives named from 
all liability on account of any moneys received by them, or acts per¬ 
formed in the execution of their powers and duties. Of course, it 
is executed by the person whose rights and interest they have author¬ 
ity to administer and protect. An executor is the person to whom 
the execution of a will of personal estate is confided by the maker of 
the will, called “testator.” Administrator is a person to whom letters 
of administration, authorizing him to administer the estate of a de¬ 
ceased person, have been granted by the register of wills, who occu¬ 
pies an office connected with the Orphans’ Court. Assignee is a per¬ 
son to whom property, real, personal or mixed, has been assigned, 
either for his own benefit or the benefit of others. Trustee is one 
who holds property upon trust, or for the benefit of others. Guard¬ 
ian is the person having the right and duty of protecting the person, 
property or rights of some one who is supposed to be incapable of 
managing his own affairs, such as an infant. 


186 


practice: and forms of law AND EQUITY. 


Assignment of Mortgage. Is a writing in which the mortgagee 
assigns to- another all his right, title and interest in and to the 
mortgage. 


Plot of Land. Consists of a map or drawing showing the bound¬ 
aries and location of the land it embraces. 

Soldier’s Discharge. Is a certificate to a soldier discharging him 
from the military service of the United States Government. 

Charter of Corporation. This is a writing in which the State 
grants to. a certain number of individuals the right to combine in a 
business undertaking, or benevolent, social, religious, etc., enterprise, 
in the name of a corporation, without being personally responsible 
for debts or any other liabilities incurred in the prosecution of said 
business, or in the management of said enterprise. 

Commission. Certificate of the appointment of a public officer. 
In some cases the right to the office is secured through election by 
the people, and in others by appointment alone. The commission is 
issued by the Governor of the Commonwealth. 

Limited Partnership. In this State is an association of individ¬ 
uals for the purpose of carrying on certain business operations. This 
association differs from a general partnership in that the liability of 
the members.personally for debts is restricted to the amount of cap¬ 
ital contributed by each. 

Letter of Attorney. Is a writing by one person authorizing 
another to do any lawful act in his stead, as to sell and convey his 
land, make all kinds of contracts, etc., in his name, and by which he 
is bound in the same manner as if he had performed the acts himself. 


Before most of the foregoing instruments can be recorded their 
execution and delivery must be acknowledged or probated. This 
acknowledgment is a declaration in writing, of the maker of an in¬ 
strument, before a court or public officer authorized by statute to 
take acknowledgments, that said instrument is his act and deed. 


PRACTICE AND FORMS OE LAW AND EQUITY. 


187 


Following is a form of acknowledgment used in deeds: 

State oe Pennsylvania, 

County oe Susquehanna. 

On the fifth day of September, Anno Domini 1906, before me, 
the subscriber, one of the justices oif the peace in and for the said 
county, personally appeared the above named Millard Fillmore, and 
in due form of law acknowledged the foregoing indenture- of deed 
to be his act and deed, and desired the same might be recorded as 
such. 

Witness my hand and official seal the day and year aforesaid. 

Zachary Taylor, 

Justice of the Peace. 

The form of the acknowledgment of a corporation is prescribed 
by statute, and of which the following is a copy: 

State oe Pennsylvania, 

County oe Luzerne. 

I hereby certify that on this tenth day of June, in the year of our 
Lord one thousand nine hundred and six, before me, the subscriber, 
a notary public in and for said county, residing in the City of Wilkes- 
Barre, personally appeared I. O. Mandeville, the attorney named in 
the foregoing indenture of deed, and by virtue and in pursuance of 
the authority therein conferred upon him, acknowledged the said in¬ 
denture of deed to be the act of the said The Fir wood Land 
Company. 

Witness my hand and notarial seal the day and year aforesaid. 

Geo. J. Kulp, 

(N. P. Seal.) Notary Public. 

My commission expires January 3, 1909. 

In the deed, of which the foregoing is an acknowledgment, I. O. 
Mandeville is constituted and appointed attorney to make acknowl¬ 
edgment of the deed. 

A probate is proof of the execution and delivery of an instrument 
by witnesses, if any there be living who were present at the execu¬ 
tion of the writing, and if such witnesses are dead or cannot be 
found, by persons who are accpiainted with the maker’s handwriting. 




188 


PRACTICE AND FORMS OF LAW AND EQUITY. 


Following is the form of a certificate of probate: 

State of Pennsylvania, 

County of Lancaster. 

Be it remembered that on the seventh day of January, A. D. 1906, 
before me, the subscriber, one of the justices of the peace in and for 
the said county, personally came William J. Bryan and Winfield S. 
Hancock, of the City of Lancaster, in said county, subscribing wit¬ 
nesses to the execution of the above indenture, and being duly sworn 
according to law doth depose and say that they did see Samuel J. 
Tilden, the grantor above named, sign and seal, and as his act and 
deed, deliver the above indenture, deed or conveyance for the use and 
purposes therein mentioned, and that the names of these deponents 
thereunto set and subscribed as witnesses, are of the deponents’ own 
proper handwriting. 

Sworn and subscribed the day and year aforesaid before me. 
Witness my hand and official seal. 

(Seal.) Horatio Seymour, 

Justice of the Peace. 

Deed. 

This indenture, made the tenth day of November, in the year of 
our Lord one thousand nine hundred and six, between Henry Knox, 
of the City of Chester, Chester County, Pennsylvania, party of the 
first part, and John Jay, of the same place, party of the second part, 
witnesseth, that the said party of the first part, for and in considera¬ 
tion of the sum o£ two> thousand dollars, lawful money of the United 
States of America, well and truly paid by the said party of the sec¬ 
ond part, to> the said party of the first part, at and before the sealing 
and delivery of these presents, the receipt whereof is hereby acknowl¬ 
edged, hath granted, bargained, sold, aliened, enfeoffed, released, 
conveyed and confirmed, and by these presents doth grant, bargain, 
sell, alien, enfeoff, release, convey and confirm unto the said party of 
the second part, his heirs and assigns, all that certain lot of land sit¬ 
uated in the City of Chester, Chester County, Pennsylvania, bounded 
and described as follows, viz.: Beginning at a comer of lot sold to 
John Jay in line of land of the heirs of Edmund Randolph, deceased; 
thence along said line north thirty degrees west one hundred and 
seven and five-tenths feet to a corner; thence along the line of lot 
No. 230, plot of lots surveyed and laid out by George Washington, 



PRACTICE AND FORMS OF DAW AND EQUITY. 


189 


and recorded in the office for recording deeds, etc., in and for the 
County of Chester, in Map Book No. 5, page 342; south sixty de¬ 
grees west twenty-five feet to a corner of lot No. 229, in said plot of 
lots; thence along said line south thirty degrees east one hundred 
and seven and five-tenths feet to Main Street; thence along said street 
north sixty degrees east twenty-five feet to the place of beginning, 
containing two thousand six hundred and eighty-seven square feet 
of land, more or less, and being lot No. 227 in said plot of lots, and 
the same lot conveyed by Alexander Hamilton to the said Henry 
Knox, through deed bearing date first day of July. 

Together with all and singular, the buildings, improvements, 
woods, ways, rights, liberties, privileges and appurtenances to the 
same belonging, or in any wise appertaining, and the reversion and 
reversions, remainder and remainders, rents, issues and profits 
thereof, and of every part and parcel thereof; and, also, all the es¬ 
tate, right, title, interest, property, possession, claim and demand 
whatsoever, both in law and equity, of the said party of the first part, 
of, in and to the said premises, with the appurtenances. To have and 
to hold the said premises, with all and singular the appurtenances, 
unto the said party of the second part, his heirs and assigns, to> the 
only proper use, benefit and behoof of the said party of the second 
part, his heirs and assigns forever. And the said Henry Knox, his 
heirs and executors and administrators, doth, by these presents, 
covenant, grant and agree to and with the said party of the second 
part, his heirs and assigns forever, that he, the said Henry Knox, his 
heirs, all and singular, the hereditaments and premises herein above 
described and granted, or mentioned and intended so to be, with the 
appurtenances, unto' the said party of the second part, his heirs and 
assigns, against him, the said Henry Knox, his heirs, and against all 
and every other person or persons, whomsoever lawfully claiming 
or to claim the same or any part thereof, shall and will warrant and 
forever defend. 

In witness whereof the said party of the first part to these pres¬ 
ents hereunto sets his hand and seal. Dated the day and year first 
above written. 

Signed, sealed and delivered J Henry Knox (Seal), 

in the presence of j 

Robert R. Livingstone, 

Thomas Jefferson. 


190 


PRACTICE AND FORMS OF LAW AND EQUITY. 


Mortgage. 

This indenture, made the second day of June, in the year of our 
Lord one thousand nine hundred and six, between Edward M. Pax- 
son, of the City of Reading, Berks County, Pennsylvania, party of 
the first part, and Daniel Agnew, of the same place, party of the sec¬ 
ond part. Whereas, the said Edward M. Paxson, in and by his obli¬ 
gation or writing obligatory, under his hand and seal duly executed, 
bearing even date herewith, stands bound unto the said Daniel Ag¬ 
new in the sum of five thousand dollars, lawful money o>f the United 
States of America, conditioned for the payment of the just sum of 
five thousand dollars, lawful money as aforesaid, in three years from 
the date thereof. 

Together with interest thereon, payable annually, at the rate of 
six per cent, per annum ; and also all premiums paid by the said 
Daniel Agnew, his executors, administrators or assigns, for main¬ 
taining an insurance against loss or damage by fire, to an amount not 
exceeding two thousand dollars, upon the premises hereinafter de¬ 
scribed, without any fraud or further delay. Provided, however, and 
it is hereby expressly agreed, that if at any time default shall be 
made in the payment of interest for the space of thirty days after the 
same shall fall due, or in the payment of any premium of insurance 
as aforesaid, then, and in such case, the whole principal debt afore¬ 
said shall, at the option of the said Daniel Agnew, his executors, ad¬ 
ministrators or assigns, become due and payable immediately, and 
payment of said principal, and all interest thereon, may be enforced 
and recovered at once, anything therein contained to the contrary 
thereof notwithstanding. And provided further, however, and it is 
hereby expressly agreed, that if at any time hereafter, by reason of 
any default in payment, either of said principal sum at maturity or of 
said interest, or of premiums of insurance within the time specified, 
a writ of fieri facias is properly issued upon the judgment obtained 
upon the obligation, or by virtue of said warrant of attorney, or a 
writ of scire facias is properly issued upon this indenture of mort¬ 
gage, an attorney’s commission for collection, viz., five per cent., 
shall be payable and shall be recovered, in addition to all principal, 
interest and premiums of insurance then due, besides costs of suit, 
as in and by the said recited obligation and the condition thereof, 
relation being thereunto had may more fully and at large appear. 

Now this indenture witnesseth, that the said Edward M. Pax- 


PRACTICE AND FORMS OF LAW AND EQUITY. 


191 


son, as well for and in consideration O'f the aforesaid debt or just 
sum of two thousand dollars, and for the better securing the payment 
of the same, with interest, unto the said Daniel Agnew, his execu¬ 
tors, administrators and assigns, in discharge of the said recited obli¬ 
gation, as for in consideration of the further sum of one dollar, unto 
him in hand well and truly paid by the said Daniel Agnew, at and 
before the sealing and delivery hereof, the receipt whereof is hereby 
acknowledged, hath granted, bargained, sold, aliened, enfeoffed, re¬ 
leased and confirmed, and by these presents doth grant, bargain, sell, 
alien, enfeoff, release and confirm unto the said Daniel Agnew, his 
heirs and assigns, all that certain lot of land (complete description 
same as in the deed). 

Together with all and singular, ways, waters, water-courses, 
rights, liberties, privileges, improvements, hereditaments and appur¬ 
tenances whatsoever thereunto belonging, or in any wise appertain¬ 
ing, and the reversions and remainders, rents, issues and profits 
thereof, to have and toi hold the said lot of land, hereditaments and 
premises hereby granted, or mentioned and intended so to be, with 
the appurtenances, unto the said David Agnew, his heirs and assigns, 
to and for the only proper use and behoof of the said Daniel Agnew, 
his heirs and assigns forever. 

Provided always, nevertheless, that if the said Edward M. Pax- 
son, his heirs, executors, administrators or assigns, do and shall well 
and truly pay, or cause to be paid, unto the said Daniel Agnew, his 
executors, administrators or assigns, the aforesaid debt or just sum 
of two' thousand dollars, on the day and time hereinbefore mentioned 
and appointed for payment of the same, together with interest and 
premium of insurance as aforesaid, without any fraud or further 
delay, and without any deduction, defalcation or abatement to be 
made of anything, for or in respect of any charges or assessments 
whatsoever, that then, and from henceforth, as well this present in¬ 
denture and the estate hereby granted as the said recited obligation, 
shall cease, determine and become void, anything hereinbefore con¬ 
tained to the contrary thereof in any wise notwithstanding. 

Provided further, in case of default in the payment of interest as 
aforesaid, or in the payment of any premium; of insurance as afore¬ 
said, that thereupon it shall be lawful for the said Daniel Agnew, his 
executors, administrators or assigns, to sue out forthwith a writ of 
scire facias upon this present indenture of mortgage, and to proceed 


192 


PRACTICE AND FORMS OF EAW AND EQUITY. 


at once thereon to recover the principal moneys hereby secured, and 
all interest or premiums of insurance due thereon, together with an 
attorney’s commission for collection, viz., five per cent., besides costs 
of suit, without further stay, any law or usage to the contrary not¬ 
withstanding. 

In witness whereof the said party of the first part to these pres¬ 
ents hath hereunto* set his hand and seal. Dated the day and year 
first above written. 

Sealed and delivered in the 
presence of 

Warren J. Woodward, 

Ueysses Mercur. 

Following is the bond referred to in the mortgage: 

Know All Men By These Presents, That Edward M. Paxson, 
of the City of Beading, Berks County, Pennsylvania, held and firmly 
bound unto Daniel Agnew, of the same place, in the sum of four 
thousand dollars, lawful money of the United States of America, to 
be paid to the said Daniel Agnew, his certain attorney, executors, 
administrators or assigns, to which payment well and truly to be 
made I bind myself, my heirs, executors and administrators, firmly 
by these presents. Sealed with my seal. Dated the second day of 
June, in the year of our Lord one thousand nine hundred and six. 

The condition of this obligation is such that if the above bounden 
Edward M. Paxson, his heirs, executors, administrators, or any of 
them, shall and do well and truly pay, or cause to* be paid, unto the 
above named Daniel Agnew, his certain attorney, executors, admin¬ 
istrators or assigns, the just sum of two thousand dollars lawful 
money as aforesaid, in three years from the date hereof, together 
with interest thereon, payable annually, at the rate of six per cent, 
per annum, and also all premiums paid by the said Daniel Agnew, 
his executors, administrators or assigns, for maintaining an insur¬ 
ance against loss or damage by fire, to the amount of at least two 
thousand dollars, upon the premises described in the accompanying 
indenture of mortgage, without any fraud or further delay, then the 
above obligation to be void, or else to be and remain in full force and 
virtue. Provided, however, and it is hereby expressly agreed, that 
if at any time default shall be made in the payment of interest for 


Edward M. Paxson (Seal). 


PRACTICE AND FORMS OF taw AND EQUITY. 


193 


the space of thirty days after the same shall fall due, or in the pay¬ 
ment of any premium of insurance as aforesaid, then, and in such 
case, the whole principal debt aforesaid and interest shall, at the 
option of the said Daniel Agnew, his executors, administrators or 
assigns, become due and payable immediately, and payment of said 
principal and all interest thereon may be enforced and recovered at 
once, anything herein contained to the contrary thereof notwithstand¬ 
ing. And provided further, however, and it is hereby expressly 
agreed, that if at any time hereafter, by reason of any default in pay¬ 
ment, either of said principal sum at maturity, or of said interest, or 
of said premiums of insurance, a writ of fieri facias is properly issued 
upon the judgment obtained upon this obligation, or a writ of scire 
facias is properly issued upon the accompanying indenture of mort¬ 
gage, an attorney’s commission for collection, viz., five per cent., 
shall be payable, and shall be recovered in addition to all principal, 
interest and premiums of insurance then due, besides costs of suit. 

And further, I do hereby confess judgment for two thousand dol¬ 
lars, with interest, costs of suit, including five per cent, commission, 
and authorize the prothonotary of Luzerne County, or the prothon- 
otary of any other county of this Commonwealth, to- enter judgment 
of record against me for such sum, with a release of all errors, waiv¬ 
ing right of inquisition on real estate, and all rights under any laws 
exempting real or personal property from levy and sale on execution. 

Sealed and delivered in the 
presence of 

Warren J. Woodward, 

Utysses Mercur. 

Patent. 

To All To Whom! These Presents Shall Come, Greeting. Know 
you, that in consideration of the money paid by John Tims, at the 
granting of the warrant hereinafter mentioned, and of the sum of 
twenty-three dollars and five cents, in full of arrearages and fees now 
paid by Rebecca S. Harper into the treasury office of this Common¬ 
wealth, there is granted by the said Commonwealth unto the said Re¬ 
becca S. Harper a certain tract of land, situate in Foster Township, 
Luzerne County. Beginning at a black oak, thence by land of John 
Brown north eight and one-half degrees east four hundred and one 
perches to a white oak; thence by land of John Barts and others 


Edward M. Paxson (Seal). 


194 


PRACTICE AND FORMS OF EAW AND EQUITY. 


south seventy-five degrees east ninety perches to a hemlock; thence 
north eighty degrees east ninety-five perches to a stone ; thence south 
seventy-five degrees east forty-nine and one-half perches to a stone; 
thence south sixty-five degrees east.forty-five perches to an elm; 
thence south forty-five degrees east twenty-five perches to a stone; 
thence by land of Margaret and Philip Shrader; thence south forty 
degrees west two hundred and seventy-twoi perches to a chestnut; 
thence south ten degrees west ninety and one-half perches to a stone, 
and thence south seventy-five degrees west one hundred and sixty 
perches to the beginning. Containing four hundred and thirty-four 
acres and one hundred perches, and allowances, and which said tract 
was surveyed in pursuance of a warrant dated the 9th day of Sep¬ 
tember, A. D. 1794, granted to> the said Tims, whose right in and to 
the same has since become vested in the said Rebecca S. Harper. 

To have and to hold the said tract or parcel of land, with the ap¬ 
purtenances, unto the said Rebecca S. Harper, and her heirs, to the 
use of her, the said Rebecca S. Harper, her heirs and assigns for¬ 
ever, free and clear of all restrictions and reservations, mines, roy¬ 
alties, quit-rents or otherwise; excepting and reserving only the fifth 
part of all gold and silver ore for the use of the Commonwealth, to 
be delivered at the pit’s mouth clear of all charges. 

In testimony whereof, John W. Geary, Governor of the said Com¬ 
monwealth, hath hereunto set his hand, and the seal of the office of 
surveyor-general of Pennsylvania hath been hereunto affixed the 
twenty-third day of February, in the year of our Lord one thousand 
eight hundred and seventy-two, and of the Commonwealth the 
ninety-sixth. 

Release of Legacy Charged on Land. 

Know All Men By These Presents, That I, Galusha A. Grow, of 
the Borough of Towanda, Bradford County, Pennsylvania, have this 
day received of Benjamin F. Peck, of the same place, the sum of ten 
thousand dollars, being the full amount of a legacy, and the interest 
due thereon, bequeathed to me by my father, Henry Grow, late of 
the Borough of Troy, in the said county, deceased, in and by his last 
will and testament, dated the fourth day of August, 1894, and since 
his decease, to wit, on the eighth day of May, 1900, duly proved and 
now remaining of record in the office of the register of wills of the 
said county, and which legacy was by the said will charged upon a 
certain tract of land (describing the land here as in the deedV 


PRACTICE AND FORMS OF TAW AND EQUITY. 


195 


therein, and thereby devised unto the said Benjamin F. Peck. And 
in consideration of said payment I do hereby release and forever dis¬ 
charge as well the said Benjamin F. Peck, as also the said lands so 
as aforesaid devised to him of and from all liability, claim or de¬ 
mand, charge or lien on account, or by reason of the said legacy. 

Witness my hand and seal this twenty-first day of October, 1901. 


Sealed and delivered in the 
presence of 

Pascal C. J. DeAngeles, 
W. A. Peck. 


Galusha A. Grow (Seal). 


Release to Executor by Legatee. 

Know All Men By These Presents, That James Mather, of the 
City of Carbondale, Lackawanna County, Pennsylvania, and Olive, 
his wife, late Olive Olmstead, one of the daughters and legatees 
named in the will of Anson Olmstead, late of the said City of Car¬ 
bondale, deceased, do hereby acknowledge that they have this day 
had and received of and from Edward Walker, executor of the last 
will and testament of the said Anson Olmstead, deceased, the sum of 
five hundred dollars, in full satisfaction and payment of all such 
sum or sums of money, legacies, bequests as are given and be¬ 
queathed to the said Olive, by the last will and testament aforesaid, 
and all interest accrued thereon. 

And, therefore, the said James Mather and Olive, his wife, do, by 
these presents, remise, release, quit-claim and forever discharge the 
said Edward Walker, his heirs, executors and administrators, of and 
from the said legacy or legacies, and of and from all actions, suits, 
payments, accounts, reckonings, claims and demands whatsoever, for 
or by reason thereof, or of any other act, matter, cause or thing what¬ 
soever, from the beginning of the world to the day of the date of 
these presents. 

In witness whereof we have hereunto set our hands and seals, this 
third day of February, A. D. 1906. 

James Mather (Seal). 
Olive Mather (Seal). 

Release of Guardian by Ward. 

Know All Men By These Presents, That I, George Shareswood, 
of the City of Franklin, Venango County, Pennsylvania, having at- 


196 


practice: and forms of law and equity. 


tained the age of twenty-one years, do* hereby acknowledge that I, 
this day, have had and received of and from Isaac F. Gordon, my 
guardian, duly appointed by the Orphans’ Court of the said County 
of Venango, the sum of one thousand dollars, together with the bond 
to him given by Henry W. % Williams, and his sureties, agreeably to 
the order of the said court, in full satisfaction and payment of my 
share of the estate, real and personal, of my late father, David 
Shareswood, deceased. 

And, therefore, I do, by these presents, remise, release, quit-claim 
and forever discharge the said Isaac F. Gordon, his heirs, executors 
and administrators, of and from the said guardianship, and of and 
from all actions, suits, payments, accounts, reckonings, claims and 
demands whatsoever, for and by reason thereof, or of any other act, 
matter, cause or thing whatsoever, from the beginning of the world 
to the day of the date hereof. 

In witness whereof I have hereunto set my hand and seal this 
twenty-third day of May, A. D. 1906. 

George Shareswood (Seal). 

Commission to Alderman. 

In the name and by authority of the Commonwealth of Pennsyl¬ 
vania, Executive Department. To all whom these presents shall 
come, Greeting: 

Whereas, It appears by the returns made and transmitted to me 
according to law, that Michael E. Gaughan, of the County of Lu¬ 
zerne, has been elected an alderman of the Second Ward of the City 
of Wilkes-Barre, in the county aforesaid. 

Therefore, know ye, that in conformity to the provisions of the 
constitution and laws of the said Commonwealth, in such case made 
and provided, I do, by these presents, commission him to be an aider- 
man in and for the said ward of said city. Hereby giving and grant¬ 
ing unto him full right and title to have and to execute all and singu¬ 
lar, the powers, jurisdiction and authorities, and to receive and enjoy 
all and singular the emoluments unto said office, lawfully belonging 
or in any wise appertaining by virtue of the constitution and laws of 
the Commonwealth. He is, therefore, to have and to hold the said 
office for the term of five years, to be computed from the first Monday 
of May, A. D. one thousand nine hundred and three, if he shall so 
long behave himself well. 


practice; and forms of daw and equity. 


197 


Given under my hand and the Great Seal of the State, at the City 
of Harrisburg, this ninth day of April, in the year of our Lord one 
thousand nine hundred and three, and of the Commonwealth the one 
hundred and twenty-seventh. 

By the Governor, 

Frank M. Fuller, Samuel W. Pennypacker. 

Secretary of the Commonwealth. 

Letter of Attorney. 

Know All Men By These Presents, That I, H. W. Longfellow, 
of Athens, Bradford County, Pennsylvania, have made, constituted 
and appointed, and by these presents do make, constitute and appoint 
P. B. Shelley, of the same place, my true and lawful attorney for me, 
and in my name to receive the principal and interest due on a certain 
bond, secured by a mortgage, given by Francis Bacon, of Towanda, 
of said county and State, to me, the said H. W. Longfellow, dated 
the seventh day of November, A. D. 1899, and recorded in the office 
for recording deeds, etc., in and for the said county, in Mortgage 
Book No. 80, page 78, etc., to secure the payment of the sum of three 
thousand dollars, with interest, as therein expressed, upon all that 
certain (here describe the land as in the deed), and on receipt of 
said principal, interest and costs, to appear for me and in my name 
in the aforesaid office for recording deeds, etc., and there to acknowl¬ 
edge and enter satisfaction on the margin of the record of said mort¬ 
gage ; and also for me and in my name to make the necessary transfer 
of any policy or policies of insurance upon the mortgaged premises 
which may now stand in my name, giving and granting unto my said 
attorney full power and authority to do and perform all lawful acts 
requisite for effecting the premises., hereby ratifying and confirming 
all that the said attorney, or substitute or substitutes, shall do therein 
by virtue of these presents. 

In witness whereof I have hereunto set,my hand and seal the 
fourth day of June, in the year of our Lord one thousand nine hun¬ 
dred and six. 

Signed, sealed and delivered in | H w Longfellow (Seal), 
the presence of ) 

Ouvfr Goldsmith, 

John Drydfn. 


198 


practice: and forms of taw and EQUITY. 


CHARTERS. 

Classes of Corporations. In this State we have two classes of 
corporations, viz., first and second class. 

First Class. Those created for charitable, religious, patriotic, 
social and educational purposes. 

Second Class. Those created for the purpose of business carried 
on for profit. 

First Class. 

Where Power to Grant Charter is Lodged. In the Court of 
Common Pleas. 

Application for Charter. Under Act 29th April, 1874, it must 
be subscribed by five or more persons, three of whom, at least, are 
citizens of the State, and set forth (a) the name of the proposed 
corporation, (b) the purpose for which it is formed, (c) the place or 
places where its business is to be transacted, (d) the term for which 
it is to exist, (e) the names and residences of the subscribers, and 
the number of shares subscribed by each, (f) the number of its 
directors, and the names and residences of those who are chosen 
directors for the first year, (g) the amount of capital stock, if any, 
and the number and par value otf shares into which it is divided. 
The application must be acknowledged by at least three of those who 
subscribe to it before the recorder of deeds or a notary public. 

Notice of Application. It must be given by publication in two 
newspapers of general circulation, for three weeks, setting forth the 
character and object of the proposed corporation, and the time when 
the application will be presented to the court. 

Presentation of Application. Must be made to a law judge of 
the Court of Common Pleas, accompanied with proof of the pub¬ 
lication of notice. 


PRACTICE AND EORMS OP PAW AND EQUITY. 199 

Duty of Judge. He is required to peruse and examine the appli¬ 
cation or certificate of association, and if the same shall be found by 
him to be in proper form and within the purposes named in the law 
relating to corporations of the first class, and not unlawful or injur¬ 
ious to the community, he is required to indorse on the application 
these facts, and to order and decree that the charter be approved. 

Recording Charter. The life of the corporation does not begin 
until the application or certificate of association, and the order or 
decree of the law judge thereon, are recorded in the office for re¬ 
cording - deeds in and for the county in which the charter is granted. 

Following are the forms used in procuring a charter for a cor¬ 
poration of the first class, in conformity to the act referred to and 
its supplements: 

Form of Application. 

In Re 

Application for the incorpora¬ 
tion of the Lithuanian Independ¬ 
ent Political and Social Club of 
Wilkes-Barre. 

To the Honorable, the Laiv Judges of the Court of Common Pleas 
of said County: 

In compliance with the requirements of an act of the General 
Assembly, entitled “An act to provide for the incorporation and reg¬ 
ulation of certain corporations,” approved April 29, 1874, and the 
supplements thereto, the undersigned, five of whom are citizens of 
this Commonwealth, having associated themselves together for the 
purposes hereinafter specified, and desiring that they may be duly 
incorporated according to law, do hereby certify: 

I. The name of the intended corporation is Lithuanian Inde¬ 
pendent Political and Social Club of Wilkes-Barre. 

II. The said corporation is formed for the social enjoyment of 
its members, and to instruct them in the English language, and as to 
their rights and duties as citizens of the United States. 


In the Court of Common Pleas 
of Luzerne Countv. 


200 


PRACTICE AND FORMS OF LAW AND EQUITY. 


III. The said business of the said corporation is to be trans¬ 
acted in the City of Wilkes-Barre, Luzerne County, Pennsylvania. 

IV. The corporation is to exist perpetually. 

V. The corporation has no capital stock. 

VI. The number of the officers of said corporation is fixed at 
four, and the names and residences of those who are chosen for the 
first year are: 

Name. Office. Residence. 

William Knitkowski_President_Wilkes-Barre, Pa. 

William Baker_Vice-President_Wilkes-Barre, Pa. 

George Knitkowski_Secretary_Wilkes-Barre, Pa. 

William Sztrimaitis_Treasurer _Wilkes-Barre, Pa. 


Witness our hands and seals this first day of March, 1902. 


William Knitkowski (Seal). 

William Baker (Seal). 

George Knitkowski (Seal). 

William Sztrimaitis (Seal). 

Joseph Dankszys (Seal). 

Joseph Koons " (Seal). 


State of Pennsylvania, 

County of Luzerne. 

Before me, a notary public, in and for the Commonwealth of 
Pennsylvania, residing and having my office in the said City of 
Wilkes-Barre, personally appeared William Knitkowski, William 
Baker and Joseph Koons, three of the subscribers to the foregoing 
certificate, and in due form of law acknowledged the same to be 
their act and deed. 

Michael McAniff (Seal). 

Notary Public. 

Form of Notice. Same as that respecting the application imme¬ 
diately following this. 

Form of Proof of Publication of Notice. Same as that relating 
to the application immediately following this. 













PRACTICE AND FORMS OF LAW AND EQUITY. 


201 


Decree. Now, to wit, April 21, 1902, the within certificate of 
incorporation having been on file in the office of the prothonotary of 
this county since the 24th day of March, 1902, as appears from the 
entry thereon, and due prool of the publication of the notice required 
by law having been presented to me, I hereby certify that I perused 
and examined the said instrument and found the same to be in proper 
form, and within the specified purposes of corporations of the first 
class, according to the second section of the Act 29th April, 1874, 
and that the said purposes are lawful and not injurious to the com¬ 
munity. It is therefore ordered and decreed that the same be ap¬ 
proved, and that upon recording said charter and its indorsements 
and this order in the office of the recorder of deeds, in and for said 
county, the subscribers thereto, and their associates, shall thence¬ 
forth be a corporation for the purposes and upon the terms and un¬ 
der the name therein stated. 

Geo. S. Ferris, Judge. 

By an act approved 6th April, 1893, provision is made for the 
incorporation and regulation of secret fraternal beneficial societies, 
orders or associations. 

Where Power to Grant Charter is Lodged. In the Court of 
Common Pleas. 

Application for Charter. I. Must be subscribed by five or 
more persons, citizens of this Commonwealth, and be acknowledged 
by at least five of the subscribers before any officer authorized to 
take the acknowledgment of deeds. II. Must set forth (a) the name 
of the intended corporation, (b) the purpose for which it is formed, 
(c) the place where its principal office is to be located, (d) the 
names and residences of the subscribers, and (e) the number and 
names of its officers, with the term or terms of years for which they 
have been chosen, and also the names of not less than six directors, 
managers or members of an executive committee who, together with 
the president of the society, order or association, shall form a board 
of directors, managers or executive committee, with the term or 
terms of years for which each is to serve. 

Notice of Application. Same as required of all other proposed 
corporations. 


202 


PRACTICE) AND FORMS OF DAW AND EQUITY. 


Presentation of Application. Must be made to a law judge of 
the Court of Common Pleas, accompanied with proof of publication 
of notice. 

Duty of Judge. Same as that to be performed by him in passing 
upon applications of other proposed corporations, and hereinbefore 
stated. 

Recording of Charter. Corporation does not exist until its char¬ 
ter is recorded in the recorder’s office. 

When Corporation May Begin Business. Not until at least 
twenty-five persons have subscribed in writing to be beneficiary mem¬ 
bers therein, in the aggregate amount of at least five thousand dol¬ 
lars, and have each paid in one full assessment in cash, amounting* 
in the aggregate to at least one per centum of the amount iti which 
they are beneficiaries, nor until a certificate signed and sworn to by 
three of the highest officers of the corporation has been filed with 
the insurance commissioner, stating that the requirements of this 
section have been complied with. 

Following are the forms used in proceedings to obtain charter 
for corporations authorized by this law : 

Form of Application. 

In Re ) In the Court of Common Pleas 

Incorporation of the Frater- > of Luzerne County. 
nity of Home Protectors. J No. , October Term, 1905. 

To the Honorable, the Lazv Judges of the said Court: 

In compliance with the requirements of the Act of Assembly of 
the Commonwealth of Pennsylvania, approved the 6th day of April, 
1893, and entitled ‘‘An act regulating the organization and incorpo¬ 
ration of secret fraternal beneficial societies, orders or associations, 
and protecting the rights of members therein,” Jas, M. Coughlin, 
Wm. G. Weaver, John I. Mathias, Wm. R. Richardson, J. Blair 
Andrews, Lewis B. Mathias, Chas. H. Barlow, John M. Beaumont, 
Francis Oplinger, Frank Puckey, Otis K. Stuart, George H. Law¬ 
rence, P. W. Siebert, Arthur R. Kasson, Samuel Williams, Jr., C. E. 
Downing and Edward C. Dean, at least nine of whom are citizens 
and residents of the Commonwealth of Pennsylvania, to wit, Jas. M. 




PRACTICE AND FORMS OF LAW AND EQUITY, 


203 


Coughlin, John I. Mathias, Lewis B. Mathias, C. H. Barlow, John 
M. Beaumont, Wm. G. Weaver, Francis Oplinger, Frank Puckey and 
G. H. Lawrence, having associated themselves together as a secret 
fraternal beneficial society, for the purpose of providing for the pay¬ 
ment of death, sick and disability claims to such of its members as 
may be entitled thereto under its constitution and general laws, by a 
system of collection from its members of admission fees, dues and 
assessments, and for such other mutual benefits as shall be set forth 
in this certificate, do hereby declare, set forth and certify that the 
following are the character, purposes, objects, articles and condi¬ 
tions of their association for and upon which they desire to be in¬ 
corporated : 

I. The name of the said proposed corporation is “Fraternity of 
Home Protectors.” 

II. The purpose for which the said corporation is formed is the 
maintenance of a secret beneficial society, the object of which said 
society is to provide, in its constitution and general laws, for the pay¬ 
ment to its members of sick, disability and death claims, in such 
amounts as may be authorized and directed in said constitution and 
general laws, by collection from said members of admission fees, 
dues and assessments. 

III. The place where the principal office of the corporation is 
and will be located is the City of Wilkes-Barre, Luzerne County, 
Pennsylvania. 

IV. The said intended corporation has no capital stock. 

V. The said corporation is to exist perpetually. 

VI. The subscribers are all citizens of the Commonwealth of 
Pennsylvania, and their names and residences are as follows: 

Jas. M. Coughlin_Wilkes-Barre, Pa. 

Lewis B. Mathias_Philadelphia, Pa. 

John M. Beaumont___Scranton, Pa. 

Francis Oplinger-Wilkes-Barre, Pa. 

G. H. Lawrence_Plymouth, Pa. 

John I. Mathias_Mahanoy City, Pa. 

C. H. Barlow_Wilkes-Barre, Pa. 

Wm. G. Weaver___Wilkes-Barre, Pa. 

Frank Puckey_Wilkes-Barre, Pa. 











204 


PRACTICE AND EORMS OE LAW AND EQUITY. 


VII. The number of the officers of the corporation is five, to 
wit: Supreme President, Supreme Vice-President, Supreme Secre¬ 
tary, Supreme Treasurer and Supreme Medical Examiner. 

VIII. The names of the persons who have been chosen said 
officers, and the term each is to serve, are as follows: 

N ame. Office. T erm . 

Jas. M. Coughlin_Supreme President_Two years. 

John I. Mathias_Supreme Vice-President_Two years. 

Lewis B. Mathias_Supreme Secretary_Two years. 

Chas. H. Barlow_Supreme Treasurer_Two- years. 

Wm. G. Weaver_Supreme Medical Examiner.Two years. 

IX. The names of the members of the executive committee 
chosen, and the term of each, are as follows: 

Jas. M. Coughlin, two years; Lewis B. Mathias, two years; Wm. 
G. Weaver, two years; C. E. Downing, two years; John I. Mathias, 
two years; Chas. H. Barlow, two years, and John M. Beaumont, two 
years. 

Witness our hands and seals this 5th day of October, 1905. 


John M. Beaumont (Seal). 

Wm. G. Weaver (Seal). 

Francis Oplinger (Seal). 

Frank Puckey (Seal). 

Jas. M. Coughlin (Seal). 

John I. Mathias (Seal). 

Lewis B. Mathias (Seal). 

C. H. Barlow (Seal). 

G. H. Lawrence (Seal). 


State of Pennsylvania, 
County of Luzerne. 



Before me, a notary public for and in the Commonwealth of 
Pennsylvania, residing in the City of Wilkes-Barre, personally ap¬ 
peared Lewis B. Mathias, Wm. G. Weaver, Jas. M. Coughlin, C. H. 
Barlow and John I. Mathias, five of the subscribers to the above 
certificate of incorporation of the “Fraternity of Home Protectors,” 
and in due form of law acknowledged the same to be their act and 
deed. 













practice; and forms of daw and equity. 205 

Witness my hand and notarial seal this 5th day of October, 1905. 

William P. Walsh (Seal), 
Notary Public. 

My commission expires January 1, 1909. 

State; of Pennsylvania, 

County of Luzerne. 

Before me, a notary public for and in the Commonwealth of 
Pennsylvania, residing in the City of Wilkes-Barre, personally ap¬ 
peared Lewis B. Mathias, Wm. G. Weaver, Jas. M. Coughlin, Chas. 
H. Barlow and John I. Mathias, who, being duly sworn according to 
law, depose and say that they are incorporators of the aforesaid 
Fraternity of Home Protectors,” and that all the above subscribers 
are citizens of Pennsylvania, and that the facts set forth in this cer¬ 
tificate are true and correct. 

Lewis B. Mathias, 

Wm. G. Weaver, 

Jas. M. Coughlin, 

C. H. Barlow, 

John I. Mathias. 

Sworn and subscribed before 
me this 5th day of October, 1905. 

William P. Walsh (Seal), 

Notary Public. 

My commission expires January 1, 1909. 

Form of Notice. 

In the Court of Common Pleas of Luzerne County, No. 1,347, 
October Term, 1905. 

Notice is hereby given that an application will be presented to 
one of the law judges of Luzerne County, in court room No. 1, of 
the court house of said county, on Monday, October 30th, 1905, at 
9 :30 o’clock, A. M., under the Act of Assembly approved April 6, 
1893, entitled “An act regulating the organization and incorporation 
of secret fraternal beneficial societies, orders or associations, and 
protecting the rights of the members therein,” for the charter of an 
intended corporation to be called “Fraternity of Home Protectors,” 



206 practice; and forms of daw and equity. 

the character of which said proposed corporation is a secret fraternal 
beneficial society, and its object is to provide for the payment to its 
members sick, disability and death claims by a system of collection 
from its members of admission fees, dues and assessments, and for 
this purpose to have, possess and enjoy all the rights, benefits and 
privileges conferred by the said Act of Assembly. 

F. M. Nichols. Solicitor. 


Decree. 

And now, 3rd day of November, 1905, upon presentation of the 
within charter of incorporation, accompanied by proof of publica¬ 
tion of notice of this application, such as is required by the Act of 
Assembly and the rules of court, and it appearing that said applica¬ 
tion has been on file in the prothonotary’s office of this county since 
the 5th day of October,—after having perused and examined 
the said instrument and finding the same in proper form, and within 
the purposes named in the Act of Assembly, approved the 6th day 
of April, A. D. 1893, entitled “An act regulating the organization 
and incorporation of secret fraternal beneficial societies, orders or 
associations, and protecting the rights of the members therein/’ and 
lawful and not injurious to the community, and in accordance with 
the terms, conditions, purposes and objects of said Act of Assembly, 
it is ordered and decreed that the said charter of the “Fra¬ 
ternity of Home Protectors” be and the same is hereby approved, 
and upon recording the same, and this order, the subscribers thereto 
and their associates shall be a corporation in the name of “Fraternity 
of Home Protectors,” for the purposes and upon the terms and pos¬ 
sessing the powers in said application, and in said Act of Assembly 
prescribed and granted. 

G. Ly. Halsfy, Judge. 


Proof of Publication. 

State of Pennsylvania, 

County of Luzerne, 

Geo. S. Boyle, of the city of Wilkes-Barre, county and state afore¬ 
said, being duly sworn according to law, deposes and says that he is 
the editor of a weekly newspaper of general circulation, published 
in said city and county, called “The Industrial Gazette,” and that an 



PRACTICE AND FORMS OF LAW AND EQUITY. 


207 


advertisement, of which the annexed slip, cut from said newspaper, 
is a copy, was published in said newspaper for four consecutive 
weeks, viz., in the issues under dates of October 6th, 13th, 20th and 
27th, 1905. 


Sworn and subscribed before me ) 
this 28th day of October, 1905. [ 

T. W. Templeton, Prothonotary. 


Geo. S. Boyle. 


Note—T he “slip” referred to should be attached to the affidavit. 


State of Pennsylvania, 

County of Luzerne, 

W. E. Woodruff, of the City of Wilkes-Barre, County and State 
aforesaid, being duly sworn according to law, deposes and says that 
he is the assistant editor of a weekly newspaper of general circula¬ 
tion, published in said city and county, called “The Luzerne Legal 
Register,” and that an advertisement, of which the annexed slip, cut 
from said newspaper, is a copy, was published in said newspaper for 
four consecutive weeks, viz., in the issues under dates of October 
6th, 13th, 20th and 27th, 1905. 



Sworn and subscribed before me | 
this 28th day of October, 1905. j 
T. W. Templeton, Prothonotary. 


W. E. Woodruff. 


Note —The “slip” referred to should be attached to the affidavit. 


Second Class. 

Where Power to Grant Charter is Lodged. In the Governor of 
the Commonwealth. 


Application for Charter. The application must be subscribed 
by two or more persons, one of whom, at least, must be a citizen of 
this State, and set forth (a) the name of the proposed corporation, 
(b) the purpose for which it is formed, (c) the place or places where 
its business is to be transacted, (d) the term for which it is to exist, 
(e) the names and residences of the subscribers and the number of 
shares subscribed by each, (f) the number of its directors, and the 


208 


PRACTICE AND EORMS OE LAW AND EQUITY. 


names and residences of those who are chosen directors for the first 
year, (g) the amount of its capital stock, if any, and the number 
and par value of shares into which it is divided, and the amount (not 
less than ten per cent, of the whole capital) which has been paid 
thereon. The application or certificate of association must have the 
same acknowledgment as that required in the application of a pro¬ 
posed corporation of the first class, and in it must appear an affidavit, 
sworn to and subscribed by at least three of the subscribers to said 
application, before the recorder of deeds or a notary public, of the 
truth of the statements therein contained. 

Notice of Application. Same as in the case of application of a 
proposed corporation of the first class. 

Presentation of Application. Must be made to the Governor, 
accompanied with proof of publication of notice. 

Duty of Governor. He is required to examine the application 
or certificate of association, and, if it be in proper form and within 
the purposes named in the law respecting corporations of the second 
class, he approves the same, and thereon indorses his approval, and 
directs letters patent to issue. 

Recording Certificate. Must be recorded, first, in the office of 
the Secretary of the Commonwealth, in a book provided for that pur¬ 
pose, and, second, with all its indorsements, in the office for the re¬ 
cording of deeds in and for the county where the chief operations of 
the corporation are to be carried on. 

Form of the Application. Following is the application or cer¬ 
tificate of association as it has to be presented to the Governor: 

To the Governor of the Commonwealth of Pennsylvania: 

Sir :—In compliance with the requirements of an Act of the Gen¬ 
eral Assembly of the Commonwealth of Pennsylvania, entitled “An 
act to provide for the incorporation and regulation of certain cor¬ 
porations,” approved the 29th day of April, A. D. 1874, and the 
several supplements thereto, the undersigned, all of whom are cit¬ 
izens of Pennsylvania, having associated themselves together for the 
purpose hereinafter specified, and desiring that they may be incor- 



PRACTICE AND FORMS OF TAW AND EQUITY. 


209 


porated, and that letters patent may issue to them and their suc¬ 
cessors according to law, do hereby certify: 

1st. The name of the proposed corporation is “The Gardner’s 
Creek Coal Company.” 

2nd. Said corporation is formed for the purpose of mining coal 
and preparing the same for market, and for buying and selling, ship¬ 
ping and transporting the same. 

3rd. The business of said corporation is to be transacted in the 
City of Scranton, Lackawanna County, Pennsylvania. 

4th. Said corporation is to exist perpetually. 

5th. The names and residences of the subscribers, and the num¬ 
ber of shares subscribed by each, are as follows: 


Name. 

Residence. 

No. of She 

George Bancroft, 

Philadelphia, 

Ten. 

Robert Burns, 

Scranton, 

Ten. 

J. Fennimore Cooper, 

Williamsport, 

Five. 

Charles Dickens, 

Lancaster, 

Five. 

Fitz Greene Halleck, 

Lebanon, 

Fifteen. 

Washington Irving, 

Wilkes-Barre, 

Seven. 

G. D. Prentice, 

Scranton, 

Twenty-five. 

Bayard Taylor, 

Reading, 

Thirty-five. 

W. C. Bryan, 

Harrisburg, 

Ten. 

John Milton, 

Pittsburg, 

Thirty. 

Edgar A. Poe, 

Erie, 

Twenty. 

Alexander Pope, 

West Chester, 

Five. 

Walter Scott, 

Franklin, 

Ten. 

William Shakespeare. 

Allentown, 

Ten. 

Samuel Johnson, 

Bloomsburg, 

Ten. 


6th. The number of directors of said corporation is fixed at five, 
and the names and residences of the directors who are chosen di¬ 
rectors for the first year are as follows: 


Name. 

W. C. Bryan, 

G. D. Prentice, 
George Bancroft, 
Alexander Pope, 
Edgar A. Poe, 


Residence. 
Harrisburg. 
Scranton. 
Philadelphia. 
West Chester, 
Erie. 


210 


PRACTICE AND FORMS OF LAW AND EQUITY.. 


7th. The amount of the capital stock of .said corporation is 
$20,000.00, divided into two hundred shares of the par value of 
$100.00, and $2,000.00, being ten per centum of the capital stock, has 
been paid in cash to the treasurer of said corporation, whose name 
and residence are John Wilton, Pittsburg, Pa. 

Witness our hands and seals this tenth day of January, A. D. 
1907. 

Robert Burns (Seal). 

Samuel Johnson (Seal). 

Washington Irving (Seal). 

Bayard Taylor (Seal). 

J. Fennimore Cooper (Seal). 

State of Pennsylvania, 

County of Lackawanna, 

Before me, a notary public in and for the county aforesaid, per¬ 
sonally came the above named Robert IJurns, . Samuel Johnson, 
Washington Irving, Bayard Taylor and J. Fennimore Cooper, who, 
in due form of law, acknowledged the foregoing instrument to be 
their act and deed for the purposes therein specified. 

Witness my hand and seal of office the tenth dav of January, 
A. D. 1907. 

Thomas Hood (Seal). 

Notary Public. 

State of Pennsylvania, 

County of Lackawanna, 

Personally appeared before me this tenth day of January, A. D. 
1907, Robert Burns, Samuel Johnson and Washington Irving, who 
being duly sworn according to law, depose and say that the state¬ 
ments contained in the foregoing instrument are true. 




Sworn and subscribed before me 
the day and year aforesaid. 


Robert Burns, 
Samuel Johnson, 
Washington Irving. 


Thomas Hood (Seal). 

Notary Public. 



PRACTICE AND FORMS OF LAW AND EQUITY. 


211 


Form of Notice of Application. Notice is hereby given that 
application will be made by Robert Burns, Samuel Johnson, Wash¬ 
ington Irving, Bayard Taylor and J. Fennimore Cooper to the Gov¬ 
ernor of Pennsylvania, on the 15th day of March, 1907, at two 
o’clock in the afternoon, under the provisions of an Act of Assembly 
entitled “An act to provide for the incorporation and regulation of 
certain corporations,” approved the 29th April, 1874, and the sup¬ 
plements thereto', for a charter for an intended corporation to be 
called “The Gardner’s Creek Coal Company,” the character and ob¬ 
ject of which is the mining of coal and preparing the same for mar¬ 
ket, and the buying, selling, shipping and transporting the 3ame, 
and for these purposes to have, possess and enjoy all the rights, ben¬ 
efits and privileges by said Act of Assembly, and the supplements 
thereto conferred. 


Daniel Weester. 


Solicitor . 


Form of Proof of Publication of Notice. 


State oe Pennsylvania, 
County of Lackawanna, 



Robert Burns, being duly sworn, doth depose and say that he is 
one of the corporators of the “The Gardner’s Creek Coal Company; 
that a notice, of which the above are copies, was published in the 
“Scranton Republican” and the “Scranton Times,” both newspapers 
of general circulation, printed and published in the County of Lack¬ 
awanna, State of Pennsylvania; that the said notice was published 
as follows: In the “Scranton Republican” on the 17th and 24th days 
of February, 1907, and on the third day of March of the same year; 
in the “Scranton Times,” on the 19th and 26th days of February, 
1907, and on the fifth day of March of the same year. 

Sworn and subscribed before me this j Robert Burns. 

tenth day of March, 1907. j 

Thomas Hood, Notary Public. 

]\[qTe _A copy of the notice published in each paper should be 

attached to the affidavit of publication. 


212 


PRACTICE AND FORMS OF LAW AND EQUITY, 


Indorsement of the Governor on Application. 

Executive Chamber, 
Harrisburg, Pa., March 15, 1907. 

To the Secretary of the Commonwealth: 

Having examined the within application and found it to be in 
proper form, and within the purposes of the class of corporations 
specified in section two of the act entitled “An act to provide for the 
incorporation and regulation of certain corporations,” approved 
April 29th, A. D. 1874, and the several supplements thereto, I hereby 
approve the same and direct that letters patent issue according to 
law. 

Benjamin Franklin, 
Governor. 


Indorsement of the Secretary of the Commonwealth. 

Pennsylvania, ss. : 

Enrolled in Charter Book, No. 250, page 175. 

Witness my hand and seal of office, at Harrisburg, this 17th day 
of March, 1907. 

Alexander McClure, 
Secretary of the Commonwealth. 


PRACTICE) AND FORMS OF TAW AND EQUITY. 


213 


LIMITED PARTNERSHIP. 

Purposes For Which It May Be Formed. For the transaction of 
any agricultural, mercantile, mechanical, mining and transporting of 
coal or manufacturing business. 

By Whom It May Be Formed. By two or more persons. 

Members of. One or more shall be called general partners, and 
one or more special partners. 

Liability of Members. The general partners are jointly and 
severally responsible as general partners. 

Special Partners. Must contribute to the capital of the partner¬ 
ship, in actual cash, a specific sum. 

Liability of Special Partner. Is not liable for the debts of the 
partnership beyond the fund contributed by him. 

How Organized. The persons desirous of forming the partner¬ 
ship shall make and severally sign a certificate of association. 

Contents of Certificate. I. The name of firm under which the 
partnership is to> be conducted. II. The general nature of the bus¬ 
iness intended to* be transacted. III. The names of all the general 
and special partners to* be interested therein, distinguishing which 
are general and which are special partners, and their respective places 
of residence. IV. The amount of capital which each special partner 
shall have contributed to the common stock. V. The period at 
which the partnership is to commence, and the period at which it will 
terminate. 

Acknowledgment of Certificate. Must be acknowledged by the 
several persons signing the same in the manner and before the same 
persons that deeds are acknowledged. 


214 


PRACTICE AND EORMS OE LAW AND EQUITY. 


Recording of Certificate. Must be recorded and filed in the 
office of the recorder of deeds of the proper county in which the 
principal place of business of the partnership shall be situated, in a 
book provided 1 for that purpose; and if the partnership shall have 
places 0 ‘f business situated in different counties, a transcript of the 
certificate and of the acknowledgment thereof, duly certified by the 
recorder in whose office it shall be filed, under his official seal, shall 
be filed and recorded in like manner in the office of the recorder of 
every such county. 

Publication of Terms of. The partners shall publish the terms of 
the partnership, when registered, for at least six weeks immediately 
after such registry, in two newspapers, to be designated by the re¬ 
corder of deeds of the county in which such registry shall be made, 
and to be published in the county or counties in which their business 
shall be carried on; and if such publication be not made the partner¬ 
ship shall be deemed general. 

Form of Certificate. 

This is to certify to all to whom- these presents shall come that 
we, whose names are hereto subscribed, to wit, Samuel Highlander 
and Theodore Uppercrust, both of the City of Sunshine, County of 
Evergreen, and State of Prosperity; and Hiram Earlyriser, of the 
City of Wideawake, county and State aforesaid, have entered into a 
limited partnership for the business of manufacturing and selling 
shoe strings and chewing gum within the said State, under and by 
virtue of an Act of the General Assembly of the said Commonwealth, 
approved the 21st day of March, A. D. 1836, and entitled “An act 
relative to limited partnerships,” and all and singular the supple¬ 
ments thereto, upon the terms, conditions and liabilities hereinafter 
set forth, to wit: 

1. The said partnership is to be conducted under the name or 
firm of “Highlander and Uppercrust.” 

2. The general nature of the business to be transacted by the 
said firm or partnership is the manufacturing and selling of shoe 
strings and chewing gum. 

3. The general partners in the said firm are Samuel Highlander 
and Theodore Uppercrust, both residing in the said City of Sun- 


practice; and forms of daw and equity. 215 

shine, and the special partner is Hiram Earlyriser, residing in the 
said City of Wideawake. 

4. The special partner has contributed to the common stock 
of the said firm the sum of one thousand dollars in cash. 

5. The said partnership is to commence immediately at and 
after the making and signing of this certificate, and is to terminate 
on the twenty-fifth day of September, in the year of our Lord one 
thousand nine hundred and twenty-seven. 

Made and severally signed by the said partners, at the City of 
Sunshine aforesaid, the first day of September, in the year of our 
Lord one thousand nine hundred and seven. 

Samuel Highlander, 

Theodore; Uppercrust, 

Hiram Earlyriser. 

Form of Acknowledgment. 

State of Prosperity, 

County of Evergreen, 

Before me, the subscriber, a notary public in and for the Com¬ 
monwealth of Prosperity, and residing in the City of Sunshine, per¬ 
sonally came and appeared on the first day of September, in the year 
of our Lord one thousand nine hundred and seven, the above named 
Samuel Highlander, Theodore Uppercrust and Hiram Earlyriser, 
who, severally, in due form of law, acknowledged the foregoing cer¬ 
tificate as and for their and each of their act and deed, to the end 
that the same might as such be recorded. 

Witness my hand and notarial seal.. 

Thomas Plunket, 

Notary Public. 

Form of Advertisement of Limited Partnership. 

We, the subscribers, have this day entered into a limited partner¬ 
ship, agreeably to the provisions of the Act of Assembly of the Com¬ 
monwealth of Prosperity, approved the first day of March, 1836, and 
entitled “An act relative to limited partnerships,” and do hereby cer¬ 
tify that the name of the firm under which said partnership is to be 



216 


practice; and forms of daw AND EQUITY. 


conducted is Highlander and Uppercrust; that the general nature 
of the business to be transacted is the manufacturing and selling of 
shoe strings and chewing gum, and the same will be transacted in 
the City of Sunshine; that the names of the general partners of said 
firm are Samuel Highlander and Theodore Uppercrust, both of the 
said City of Sunshine, and the special partner is Hiram Earlyriser, 
of the City of Wideawake; that the capital contributed by the special 
partner is one thousand dollars in cash; that the period at which the 
said partnership is to commence is the twenty-fifth day of September, 
1907, and that it will terminate on the twenty-fifth day of Septem¬ 
ber 1997 

’ William Highflyer, Solicitor. 

In this State we have partnership associations that do not impose 
upon any of their members the liabilities of general partners. The 
formation of such partnerships is provided for in the act approved 
2nd June, 1874. The powers and immunities of, and procedure to 
form the association prescribed in this law are as follows: 

How Formed. When any three or more persons may desire to 
form a partnership association by subscribing and contributing cap¬ 
ital thereto, which capital shall alone be liable for the debts of such 
association, it shall be lawful for such persons to sign and acknowl¬ 
edge, before some officer competent to take the acknowledgment of 
deeds, a statement in writing, in which shall be set forth (a) the full 
names of such persons, and the amount of capital subscribed by each; 
(b) the total amount of capital, and when and how to be paid; (c) 
the character of the business h> be conducted, and the location of the 
same; (d) the name of the association, with the word “limited” 
added thereto as part of the same; (e) the contemplated duration of 
said association, which shall not in any case exceed twenty years; 
(f) the names of the officers of said association, selected in con¬ 
formity with the provisions of the act. 

Liability of Members. Shall not be liable upon any judgment, 
decree or order, or any debt or engagement of the association, be¬ 
yond unpaid portions of their subscriptions to the capital of the as¬ 
sociation. 

Style of Association. The word “limited” shall be the last word 
of the name of every association formed under this act. 



PRACTICE) AND FORMS OF DAW AND EQUITY, 217 

Capital Subscribed in Property. It is lawful for any member 
to make contribution to the capital of the association in real or per¬ 
sonal estate, mines or other property, at a valuation to be approved 
by all the members subscribing to the capital of such association. 
Provided, that in the statement required to be recorded, subscrip¬ 
tions to the capital, whether in cash or in property, shall be certified 
in this respect according to the fact; and when property has been 
contributed as part of the capital, a schedule containing the names 
of the parties so contributing, with a description and valuation of 
the property so contributed, shall be inserted. 

Statement \ We, the undersigned, desiring 

0F / to form a partnership association 

> by subscribing and contributing 
The Wyoming Mushroom Co.A capital thereto, which s^id cap- 
Limited. I ital shall alone be liable for the 

debts of said association, in compliance with the Act of Assembly, 
approved the 2nd day of June, 1874, P. L., page 271, do make, sign 
and acknowledge the following statement: 

I. The full names of the persons constituting the membership 
of this association, and the amount of capital stock contributed by 
each, in cash and property, are as follows: 


Names. 

In What. 

No. Shares. 

To’lPar Val. 

Richard O’Brien 

. Cash 

Ten 

$ 500 00 

David Tod 

. Cash 

Ten 

500 00 

John Wood 

Cash 

T wenty 

1,000 00 

Rufus Saxton 

_ . Cash 

Twenty 

1,000 00 

Louis Wigfall 

. Cash 

Thirty 

1,500 00 

Edmund Ross 

. Property 

Ten 

500 00 


II. The total amount of the capital of the association is five 
thousand dollars, twenty per cent, of the cash contributions thereto 
to be paid forthwith, and the remainder thereof whenever and in 
such installments as the managers of the association shall direct, 
and the property contributions, immediately upon the execution 
hereof, through delivery of possession, and such evidences of trans¬ 
fer in writing as are necessary to vest in the association absolute and 
unincumbered title to the same. 








218 


PRACTICE AND FORMS OF LAW AND EQUITV. 


III. The valuation of the property subscribed is approved by all 
of the members subscribing to the capital of this association, and the 
following is a schedule containing the name of the person subscrib¬ 
ing property, with a description and valuation of the same: 

Name. D e scrip ti on. V alu ation. 

Edmund Ross, Team of horses, $500.00 

IV. The character of the business to be conducted by this as¬ 
sociation is the raising, cultivating, canning, buying and selling of 
mushrooms, and of carrying on a general market gardening and 
hothouse business, and the location of the said business is to be in 
the Borough of Wyoming, Luzerne County, Pennsylvania. 

V. The principal office of the association is and will be in the 
City of Pittston, Luzerne County, Pennsylvania. 

VI. The name of this association is “The Wyoming Mushroom 
Company, Limited.” 

VII. The contemplated duration of this association is twenty 
years from the date hereof. 

VIII. The names of the officers of the association, selected in 
conformity with the provisions of the said Act of Assembly, are as 
follows: 

David Tod, Chairman, 
Richard O’Brien, 

John Wood, 

M anagers. 

Rufus Saxton, President, 
Louis Wigfali , Secretary, 
Edmund Ross, Treasurer. 

Witness our hands and seals this first day of September, in the 
year of our Lord one thousand nine hundred and seven. 


Richard O’Brien (Seal). 

David Tod (Seal). 

John Wood (Seal). 

Rufus Saxton (Seal). 

Louis Wigfall (Seal). 

Edmund Ross (Seal). 


PRACTICE AND FORMS OF LAW AND EQUITY. 


219 


State of Pennsylvania, 

County of Luzerne, 

Before me, a notary public in and for the Commonwealth of 
Pennsylvania, residing and having my office in the City of Pittston, 
of the county and State aforesaid, personally appeared the above 
named Richard O’Brien, David Tod, John Wood, Rufus Saxton, 
Louis Wigfall and Edmund Ross, and in due form of law acknowl¬ 
edged the foregoing statement to be their act and deed. 

Jeremiah M. Tiptop, 

Notary Public. 



QUESTIONS TO AID THE STUDENT IN THE STUDY OF 
THIS WORK, AND TO BE USED BY THE 
TEACHER IN RECITATIONS. 

(Answers are on pages referred to.) 


Courts. 


Name the kinds of power vested in the government of 

the state. 15 

What is the power vested in courts called?. 15 

Name each court now existing in the state. 15 

What courts is the state, by its constitution, required to 

maintain ?... 15 

What public authority has power to install courts other 

than those named in the constitution?. 15 

When was the Superior Court of the state established?. . . 15 


Appexuats Courts. 

Supreme Court. 

Give the territorial jurisdiction of this court. 16 

Respecting its subjects, into' what two classes is the juris¬ 
diction of this court divided?. 16 

What is original jurisdiction?. 16 

What is appellate jurisdiction?. 16 

In what cases has this court original jurisdiction?. 16 

What is a habeas corpus ?. 16 

What is a mandamus?. 16 

What is a quo warranto?. 16 

In what cases has this court appellate jurisdiction?.16-17 

For the purpose of hearing cases in this court, name the 

districts into which the state is divided.17-18 

Name the counties in each of these districts.17-18 


When does the term of court for each district begin, and 
how long does it continue?. 


18 






















questions to aid the student. 221 

Of how many judges does the bench of this court consist? 18 
What is the term of service allotted to each judge elected 
a member of this bench?. Ig 

Of the judges of this court, who is the chief justice?. 18 

Give the salary paid to each member of the bench of this 
court. 

Give the names of the judges of this court. 18 

How is a case transferred from a lower court into this 

court . lg 

What is an appeal?. lg 

The right to appeal must be exercised within what period 
of time?. lg 

What is the party taking the appeal called?. 18 

What is the party from whose judgment the appeal is taken 
called ?. lg 

To get an appeal allowed by this court, what must be done ? 18 

Take and transcribe the praecipe and affidavit for an ap¬ 
peal to this court, as read by the teacher. 19 

Fold and indorse this paper. 21 

Take and transcribe the bond required in appeals to this 

court, as read by the teacher. 20 

Fold and indorse this paper. 22 

Superior Court . 

What territory does the jurisdiction of this court embrace? 23 
Into what classes is the jurisdiction of this court divided? 23 
To what subject does the original jurisdiction of this court 

extend ?. 23 

What are the subjects of the exclusive and final appellate 

jurisdiction of this court?.23-24 

In what cases may an appeal be taken from the decision 

of this court to the Supreme Court?. 24 

Of how many judges is the bench of this court composed? 24 
What is the term of service prescribed for each judge 

elected to this bench?. 24 

What is the salary of each judge of this court?. 24 

Of the judges of this court, who is the president judge?. . 24 

Give the names of the judges of this court. 24 

How are appeals taken from the judgments of the lower 

courts into this court?. 24 

Take and transcribe the praecipe and affidavit for an ap¬ 
peal to this court, as read by the teacher. 25 























222 


QUESTIONS TO AID THE STUDENT. 


Fold and indorse this paper. 27 

Take and transcribe the bond required in appeals to this 

court, as read by the teacher.. 26 

Fold and indorse this paper. 28 


Court oe Common PeEas. 

Jurisdiction. 

What is the meaning of the term jurisdiction?. 29 

Give the subjects to which the jurisdiction of the law side 

of this court extends. 29 

Give the subjects to which the jurisdiction of the equity 

side of this court extends. 30 

Judicial Districts. 

For this court, how many judicial districts are in this 

state? .30-31 

What is the population required of each judicial district? 30 
How many judicial districts have territory consisting of 

more than one county?.,. 31 

How many judicial districts have territory consisting of 

one county?. 31 

Give the number of, and county or counties in each judicial 

district of the state.31-32 

Name the place or places in which this court is held in each 
judicial district.31-32 

Judge. 

What is a judge ?. 33 

In what judicial districts do we have president judges?. . . 33 

What other judges learned in the law may the judicial 

districts have?. 33 

By what public authority may the election of additional 

law judges be authorized?. 33 

In judicial districts having more than one judge learned 

in the law, who is the president judge?. 33 

In what judicial districts are judges not learned in the law? 33 

What are judges not learned in the law called?. 33 

In what judicial districts are associate judges?. 33 

In what judicial districts are separate Orphans’ Courts?. . 35 

In judicial districts in which are more than one judge of 
the Orphans’ Court, what are they called?. 35 




















QUESTIONS TO AID THE STUDENT. 


223 


What is the term of service allotted to each judge of the 
r Orphans Court, and of the Court of Common Pleas?.33, 35 
What is the qualification required of these judges, and of 

the judges of the Supreme and Superior Courts?. 33 

What is the salary of the president, additional law and 
associate judges of the Court of Common Pleas, and 

of the judges of the Orphans’ Court?. 33 

Give the number of judges learned in the law in all the 
judicial districts of the state. ...34-35 


Jury. 

What is a jury?. 

Give the number of jurors required at each term of the 
Court of Common Pleas, in each judicial district other 


* than that of the county of Philadelphia.35-3G 

Give the number of jurors required at each term of this 
court in the judicial district of the county of Phila¬ 
delphia. 36 

State the qualifications required of jurors. 36 

What is the province of the jury?. 36 

Prothonotary. 

What is the prothonotary ?. 36 

Name his duties. 36 

Name his powers. 36 

Name the dockets kept in his office, and the contents of 
each. 36-38 

Court Clerk. 

By whom is the court clerk appointed, and what are his 
duties?.38-39 

Court Stenographer. 

By whom is the court stenographer appointed, and what 

are his duties ?. 39 

What qualification is required of the stenographer?. 39 

What oath or affirmation is he required to take before en¬ 
tering upon the discharge of his duties?. 39 

For what term is he appointed?. 39 

What compensation is provided for the services rendered 
by him?. 39 




















224 


QUESTIONS TO AID THE STUDENT. 


Court Crier. 

What is a court crier?.39-40 

What are his duties?.39-40 

Repeat the proclamation of the court crier used at the 
opening of court, and the one used at the closing of 
court. 40 

Tipstaff. 

What is a tipstaff?. 40 

Why is this officer called a tipstaff?. 40 

Court oe Equity. 


What is a Court of Equity?. 40 

As a separate tribunal, does this court exist in this state?. . 40 

In what court are the jurisdiction and powers of a separate 

Court of Equity vested?. 40 

Before whom are cases within the equity jurisdiction of 

the Court of Common Pleas heard ?... 40 

How are suits and other proceedings in the equity juris¬ 
diction begun? . 41 

What is a bill of complaint?. 41 

How must a bill of complaint be constructed ?. 41 

If copies of any writings referred to in the bill are fur¬ 
nished, in what part of the bill are they placed?. 43 

To whom must notice of the filing of the bill be given ?. . . 43 

How must the notice be served?. 43 

On what part of the bill must the notice be printed ?. 43 

Take and transcribe the bill, as read by the teacher.41-43 

Take and transcribe the indorsement of the bill, including 

the notice, as read by the teacher. 44 

How is the defendant affected by failure to comply with 

the notice ?. 45 

What is the meaning of “pro confesso”?. 45 

How and upon what ground can the plaintiff take judg¬ 
ment pro confesso?. 45 

How is appearance on the part of the defendant entered in 

an equity proceeding?. 45 

What is a demurrer?. 45 


Take and transcribe the demurrer, as read by the teacher. .46-47 
Fold and indorse this paper. 
























QUESTIONS TO AID THE STUDENT. 225 

Give the definition of an answer. 47 

Give the structure of an answer. 47 

Take and transcribe the answer, as read by the teacher, and 

then fold and indorse the same.48-50 

Define replication, and give its structure. 50 

Take and transcribe the language used in a replication, 

as read by the teacher. 50 

What is a decree ?. 50 

Take and transcribe the decree, as read by the teacher, and 

then indorse and fold the same. 50 

Take and transcribe the injunction bond, as read by the 

teacher, and then indorse and fold the same.50-51 

What is an injunction?. 51 

Take and transcribe the injunction, as read by the teacher, 
and then indorse and fold the same.51-52 


Law Side oe Common Peeas. 

Give meaning of “term of Court of Common Pleas.”. 52 

How many terms does the law require in each judicial 

district ? . 52 

How is the order in which proceedings begun in this court 
indicated?.52-53 


Actions. 

Such as are within the jurisdiction of this court, what are 


actions ?. 54 

What are parties to an action called ?. 54 

Who is the plaintiff in an action?. *54 

Who is the defendant in an action ?. 54 

Name the kinds of action. 54 

For the recovery of what may personal actions be main¬ 
tained? . 54 

Give the classes of personal actions. 54 

For the recovery of what may actions ex contractu be main¬ 
tained ? . 54 

For the recovery of what may actions ex delicto be main¬ 
tained? . 54 

What is a tort?. 54 

Give the name of the action ex contractu. 54 

For the recovery of what may the action of assumpsit be 
maintained?. 54 


























226 


QUESTIONS TO AID THE STUDENT. 


Give the names of actions ex delicto. 54 

For the recovery of what may the action of trespass be 

maintained ? .. 54 

For the recovery of what may the action of replevin be 

maintained?. 54 

What are real actions ?.*. 54 

Give the names of real actions. 55 

For the recovery of what may the action of dower be main¬ 
tained ?. 55 

For what purpose may the action of partition be main¬ 
tained? . 55 

For the recovery of what may the action of ejectment be 

maintained ?. 55 

What are mixed actions ?. 55 


Proceedings in Actions. 


How is an action begun?. 55 

What is a praecipe ?. 56 

Take and transcribe the praecipe for each action, as read 

by the teacher.56-62 

Fold and indorse each praecipe. 57 

What affidavit is the plaintiff required to file with his prae¬ 
cipe for summons in ejectment?. 62 

Take and transcribe this affidavit, as read by the teacher. . 62 

Fold and indorse this affidavit. 62 


What affidavit is the plaintiff required to file with his prae¬ 
cipe for a writ of replevin?. 60 

Take and transcribe this affidavit, as read by the teacher. . 60 

What other paper is the plaintiff required to file with his 

praecipe for a writ in replevin?. 59 

Take and transcribe the replevin bond, as read by the 

teacher. 59 

Indorse and fold the bond. 68 

Take and transcribe the writ ordered in each praecipe, as 

read by the teacher.64-66, 69-71 

Indorse and fold each writ.72-76 

How may the defendant retain possession of the goods 

named in the writ of replevin?.•. 66 

Take and transcribe the claim property bond, as read by 
the teacher.'..66-67 

























QUESTIONS TO AID THE STUDENT. 227 

Sheriff. 

To whom are all the above-named writs delivered for exe¬ 
cution ?. 77 

To execute a writ, what is the sheriff required to do?. 77 

How does the sheriff report to the court execution of the 

writ?. 77 

Take and transcribe the sheriff’s return of service of a 

writ, as read by the teacher. 77 

What is a sheriff?. 77 

Name the duties of the sheriff. 77 

Name the dockets kept in the sheriff’s office. 77 

Give the contents of each docket. 77 

Declarations or Statements. 

After filing his praecipe in the prothonotary’s office, to 
prepare his action for trial, what is the next paper re¬ 
quired of the plaintiff?. 78 

What is a declaration or statement?. 78 

In an action of assumpsit, with what must the statement 

be accompanied?. 78 

Take and transcribe each of the statements furnished, as 

read by the teacher.78-88 

Indorse and fold each statement. 

How can the defendant, after the plaintiff has filed his 
statement, avoid losing the privilege of resisting the 

plaintiff’s demand .in the action?. 88 

What is an appearance, and how is it entered?. 88 

What is an affidavit of defence?. 88 

Take and transcribe the affidavit of defence, as read by the 

teacher.88-89 

Indorse and fold this affidavit. 

Pleas. 

What must the defendant do before the trial of an action 

can occur?. 90 

What is a plea?. 90 

Name the two classes of pleas. 90 

What are dilatory pleas?. 90 

What are peremptory pleas?. 90 

What are general pleas?. 90 

What are special pleas ?. 90 

Give the pleas used in the action of assumpsit. 90 




























228 


QUESTIONS TO AID THE STUDENT. 


Give the pleas used in the actions of ejectment and tres¬ 
pass. 90 

Give the meaning of the plea of “non assumpsit.”. 90 

Give the meaning of the plea of “payment.”. 91 

Give the meaning of the plea of “set-off.”. 91 

Give the meaning of the plea of “bar of the statute of lim¬ 
itation.” . 91 

Give the meaning of the plea of “not guilty.”. 91 

What is the object of a plea?. 91 

How many of the above-named pleas can be used in one 

action of assumpsit?. 92 

Take and transcribe the pleas used in the actions of as¬ 
sumpsit and of trespass, as read by the teacher. 92 

Indorse and fold each plea. 92 

Take and transcribe the plea in an action of replevin. 92 

Indorse and fold this plea. 92 

Give translation of the words “non cepit modo et forma.” 93 
What other pleas than the one given may be used in the 

action of replevin?. 93 

Translate the words “actio non accrevit infra sex annos.” 93 

Translate the words “cepit in alio loco.”. 93 

Take and transcribe the plea in the action of dower, as read 

by the teacher. 93 

Indorse and fold this plea. 93 

What other plea may be used in the action of dower?. 93 

Translate “ne umques seise que dower.”. 93 

Translate “neum ques accouple en loyal matrimonie.”. ... 93 

Take and transcribe the plea in an action of partition. 94 

Translate “non tenent in simul.”. 94 

Trial. 

After the entry of the plea, what is the final step required 

to bring the action to trial?. 95 

What is a trial list?. 95 

In what order are the cases placed on the trial list?. 95 

How is a case ordered on to the trial list?. 95 

Take and transcribe the praecipe ordering a case on to the 

trial list. 95 

Indorse and fold this praecipe. 95 

By whom and in what order are the cases on the trial list 
called for trial?. 95 




























QUESTIONS TO AID THE STUDENT. 


*229 


Where does each party and his counsel sit during the trial ? 95 

How many jurors are chosen to try the case?.95-96 

State the method of selecting the jury.•.95-96 

Before the trial begins, what are the jurors required to do P.95-96 
Take and transcribe the oath administered to the jury be¬ 
fore the beginning of the trial.95-96 

Take and transcribe the affirmation administered to the 

jury before the beginning of the trial.95-96 

Immediately after the administration of this oath or affirm¬ 
ation to the jury, what does the attorney for plaintiff 

do?. 96 

Repeat the introductory words of attorney’s opening ad¬ 
dress to the jury. 96 

In his opening address, what is the attorney expected to 

say?.96-97 

What is the next step in the trial after the opening address 

of the attorney?.96-97 

How is oral evidence furnished?.96-97 

How are witnesses compelled to attend the trial and tes¬ 
tify? .96-97 

Take and transcribe the subpoena, as read by the teacher. .96-97 

What is a witness required to' do before testifying?.96-97 

Take and transcribe the oath administered to the witness, 

as read by the teacher.96-97 

Take and transcribe the affirmation administered to the 
witness. . . .. 98 

Who first examines the witness called by the plaintiff?. ... 98 

What is this examination of the witness called?. 98 


When does attorney for defendant examine the witness 


called by plaintiff ?. 98 

What is this examination of the witness called?. 98 

Who first examines witnesses called by the defendant?. .. 98 

What is this examination called?. 98 

When is attorney for the plaintiff allowed to examine wit¬ 
nesses called by the defendant?. 98 

What is this examination called?. 98 

What is the re-examination of a witness in chief called?. . 98 

What is examination of witness in chief?. 98 

What is cross examination of a witness?. 98 

How may the judge be required to rule on the admissi¬ 
bility of proposed testimony?. 98 

























230 


QUESTIONS TO AID THE STUDENT. 


What is the language used by the judge in ruling on ob¬ 
jections to proposed evidence?. 98 

If the party against whom the judge rules desires to enter 

an exception to the ruling, what must he do ?. 98 

Name the reasons assignable for objections to offers of 
evidence. 98 

What is irrelevant testimony?. 98 

What is immaterial testimony?. 99 

What is hearsay testimony?. 99 

What is the meaning of the objection ‘‘not cross-exam¬ 
ination” ?. 99 

What is the meaning of the objection “not the best evi¬ 
dence” ?. 99 

What is the meaning of the objection “not rebuttal”?. 99 

What is the meaning of the objection “not surrebuttal” ?. . 99 

What is incompetent evidence?. 99 

What is documentary evidence?. 99 

Name the objections that may be interposed to offers of 
this evidence?. 99 

What is the meaning of the objection “execution not 
proved” ? . 99 

What objections, on account of incompetency, may be 
made to witnesses?.99-100 

What does each party to a trial, through his attorney, say 

when he concludes the introduction of his evidence?. . . 100 

After the plaintiff has announced “the plaintiff rests,” what 

does the defendant do ?. 100 

For what purpose may the plaintiff call witnesses after the 

defendant rests?. 100 

What is the evidence presented by the plaintiff after de¬ 
fendant rests called?. 100 

For what purpose may the defendant call witnesses after 

the plaintiff has rested the second time?. 100 

What is the evidence presented by the defendant, after the 

plaintiff has rested the second time, called?. 100 

Generally, what do the attorneys for the parties in a trial 
do immediately upon the conclusion of the evidence ?. 100-101 
In what form are these points presented to the judge?. . . . 100 
What recognition do the points receive from the judge ?. 100-101 






















QUESTIONS TO AID THE STUDENT. 


231 


Following the argument on the points, what does plain¬ 
tiff’s attorney do?.100-101 

After attorney for plaintiff has finished his concluding 
address to the jury, what does attorney for defend¬ 
ant do? . 100-101 

What act on the part of the judge immediately follow's the 
concluding addresses of the counsel?. 100-101 

What is the charge of a judge in the trial of an action ?. 100-101 

After listening to the instructions given in the charge, in 

charge of whom is the jury placed?. 100-101 

Repeat the oath administered to the tipstaff who. is selected 
to take charge of the jury. 100-101 

After the oath is administered to the tipstaff, what does the 

jury do? . 100-101 

What is the first step taken by the jury after their retire¬ 
ment? . 100-101 

What is a verdict?.100-101 

How many jurors must assent to the verdict rendered?. 100-101 

If satisfied the jury cannot agree upon a verdict, what does 
the judge do?. 100-101 

If the jury is discharged because of inability to agree upon 
a verdict, to secure a determination of the contention 
between the parties what is necessary?. 100-101 

In an action of assumpsit, repeat the form of the verdict in 
favor of the plaintiff; also that in favor of the defend¬ 
ant. 102 

In case the verdict is in favor of the plaintiff, thereon what 

is the judgment entered for?. 102 

In case the verdict is in favor of the defendant, thereon 

what is the judgment entered for?. 102 


Stenographer’s Record oe a Trial. 

Take and transcribe the caption and introductory entries 
in the record of the court stenographer, as read by the 
teacher. 102 

Take and transcribe the remainder of this record, as read 
by the teacher, dividing the whole into as many les¬ 
sons of practice as there are days shown in the 
record.102-142 

















232 


questions to aid the student. 


Note. —We suggest the use of this record in a prac¬ 
tical illustration. Organize a court by selecting one 
student for judge; one for court clerk to administer 
affirmations and draw the names of jurors from the 
jury box; one to act as court stenographer; one for 
court crier; one for tipstaff; one to act as attorney for 
the plaintiff, and one to act in the same capacity for 
the defendant; one to personify the plaintiff, and one 
to personify the defendant, and as many as there are 
witnesses named in the record to act as witnesses. If 
possible, place in the jury box the names of thirty stu¬ 
dents, but in order to avoid depriving those chosen of 
this practice opportunity, like all the others, excepting 
the judge, attorneys and court clerk, participating in 
the trial, they should be required to take shorthand 
notes of the proceedings. Call students to act as wit¬ 
nesses. Have each affirmed by the court clerk. Have 
the questions given in the book read to the witnesses 
by the attorneys for the parties. To these questions 
the witnesses should give the answers given in the book. 
The judge should read the charge to the jury, and also 
the rulings on objections to proposed evidence. Have 
the jury retire in charge of the tipstaff, and return or 
attempt to return a verdict in the manner given. After 
the case has been submitted to the jury, have all the 
students transcribe their notes without using the book 
for that purpose. 


Judgments. 


What is a judgment?. 143 

In respect to the origin and effect of judgments, give the 
names of the things upon which judgments are 
founded. 143 

Verdict. 

What is a verdict?.*. .. 143 

When may judgment be entered upon a verdict?. 143 

What condition must be complied with before the right to 
order entry of judgment upon a verdict can be exer¬ 
cised ? . 143 

How may the entry of this judgment be ordered?. 143 

Take and transcribe the praecipe for the entry of judg¬ 
ment upon a verdict, as read by the teacher. 143 








QUESTIONS TO AID THE STUDENT. 


233 


A wards—Arbitra tions. 


What is an award?. 143 

To whom does the law give the right to cause arbitration 
of actions?. 543 

Before the plaintiff can exercise this right, what must he 
^ do? . 143 

Before the defendant can exercise the right, what must he 

do? . 143 

What are the names of the papers used in arbitrating an 

action? .. 143 

Take and transcribe the praecipe, and its indorsement, 
as read by the teacher. 144 

Take and transcribe the two> rules, and their indorsements, 

as read by the teacher. 144-147 

What day must be appointed for choosing arbitrators?. . . 148 

When must the first rule be served?. 148 

How must the first rule be served?. 148 

When are the time and place for the trial appointed?. . . . 148 

Who determine the time and place for the trial?. 148 

What day must be appointed for the trial?. 148 

In the absence of an agreement of the parties to the con¬ 
trary, how many arbitrators must be chosen ?. 148 

Who have the right, subject to the limitations in the law, 

to fix the number of arbitrators?. 148 


How are the arbitrators chosen? 


148-149 


When must the second rule be served? 


150 


State the methods of service upon individuals, and upon 

corporations. 150 

At what place and time must the trial before arbitrators 

be had?. 150 

What are the arbitrators required to do before the begin¬ 
ning of the trial?. 150 

When may the arbitrators make their award?.150-151 

By how many of the arbitrators must the award be 

signed? .150-151 

To whom must the award be transmitted, and when?. .150-151 


Take and transcribe the award, as read by the teacher. .150-151 
Respecting the defendant and his real estate, what is the 
effect of an award filed in the prothonotary’s office?. 150-151 
How may a party to an arbitration get the case back into 
the Court of Common Pleas for trial before the judge 
and jury? .150-151 

























234 


QUESTIONS TO AID THE STUDENT. 


With what conditions is the party proposing to appeal from 

the award required to comply?.150-151 

Take and transcribe the affidavit required in appeals from 
awards, and also the recognizance therein required, as 
read by the teacher. 152 

Confessions. 

In what agreements is it usual to have confessions of 

judgment?. 153 

What is the purpose of confessions?. 153 

How is the entry, in the Court of Common Pleas, of a 

judgment confessed, secured?. 153 

Take and transcribe the confession of judgment, as read 

by the teacher. 153 

What is the purpose (a) of the attorney fee; (b) the 

waivers in this form of confession of judgment?. 153 

Take and transcribe the praecipe directing entry of judg¬ 
ment confessed, as read by the teacher. 154 

By Default. 

What is a judgment by default?. 154 

When and upon what condition is the plaintiff entitled to 

judgment by default for want of appearance?. 154 

How is entry of judgment by default for want of appear¬ 
ance ordered?. . 154 

Take and transcribe the praecipe directing entry of judg¬ 
ment by default for want of appearance, as read by 

the teacher. 154 

When and upon what condition may plaintiff have judg¬ 
ment by default for want of affidavit of defence?. . . . 154 
How may judgment by default for want of affidavit of 

defence be obtained?. 155 

Take and transcribe the praecipe ordering entry of this 

judgment, as read by the teacher. 155 

Lien. 

What is a lien upon real estate?. 155 

When does a judgment become a lien upon real estate?. . . 155 

How may the lien be removed?. 155 

How long will the lien continue without being renewed or 
revived in a proceeding provided in the law for that 
purpose ? . 155 




















\ 

QUESTIONS TO AID THE STUDENT. 


235 


Scire Facias. 

Give the translation of scire facias. 155 

State all the purposes for which the writ of scire facias is 

used .155-156 

How is the issue of this writ caused?.155-156 

Take and transcribe all of the praecipes directing this writ 

to be issued, as read by the teacher.156-158 

If no defence is made in the proceeding founded upon this 

writ, what is the right of the plaintiff?. ..156-158 

If defence is made in this proceeding, how is the issue thus 
created determined? .156-158 

Writs of Scire Facias. 

Take and transcribe all of the writs issued in obedience to 
the praecipes last taken and transcribed, and also the 
indorsement of each, as read by the teacher.159-167 

Executions. 

What is an execution?. 168 

How is the issue of the writ of execution caused?. 168 

To whom is the writ directed?. 168 

Name each kind of execution. 168 

Fieri Facias. 

Give translation of “fieri facias.”. 168 

In this writ, what is the sheriff commanded to do?. 168 

When may the sheriff sell real estate under this writ?. 168 

What is the inquisition held under this writ?. 168 

Venditioni Exponas. 

Give the translation of “venditioni exponas.”. 169 

In this writ, what is the sheriff commanded to do ?. 169 

Levari Facias. 

Give the translation of “levari facias.”. 169 

For what purpose is this writ used?.. 169 

In this writ, what is the sheriff commanded to 1 do ?. 169 

Habere Facias Possessionem. 

Give translation of “habere facias possessionem:”. 169 

Upon what judgment is this writ issued?. 169 

In this writ, what is the sheriff commanded to do ?. 169 

























236 questions to aid the student. 

Capias Ad Satisfaciendum. 

Give translation of “capias ad satisfaciendum.”. 169 

Upon what judgments may this writ be issued?. 169 

In this writ, what is the sheriff commanded to do ?. 169 

A ttachment-Bxecution. 

For what purpose may this writ be used?.169-170 

Against whom is the writ issued?. 170 

What are the parties against whom the writ is issued 
called?. 170 

Praecipes. 

Take and transcribe the praecipe for each writ of execu¬ 
tion, as read by the teacher.170-172 

Take and transcribe each writ issued in obedience to the 
praecipes last taken, and also' its indorsement, as read 
by the teacher.172-183 

Recorder oe Deeds. 

What is the recorder of deeds called ?. 184 

What is the office occupied by the recorder called. 184 

Name all the instruments that may be recorded in this 
office. 184 

Deeds. 

What is a deed?.184-185 

What are the parties to a deed called?.184-185 

Who is the grantor in a deed?.184-185 

Who is the grantee in a deed?.184-185 

Mortgage. 

What is a mortgage?. 185 

What are the parties to a mortgage called?. 185 

Who is the mortgagor in a mortgage?. 185 

Who is the mortgagee in a mortgage?. 185 

Mortgage Bond. 

With what instrument is the mortgage generally accom¬ 
panied? . 185 

What are the parties to the bond called?. 185 























QUESTIONS TO AID THE STUDENT. 237 

Who is the obligor in the bond?. 185 

Who is the obligee in the bond ?. 185 

What is an assignment of mortgage?. 186 

Release of Legacy. 

What is this instrument?. 185 

What is a person to whom a legacy is payable called?. ... 185 
What is a legacy?. 185 

Release of Executor, Etc. 

What is the effect of this instrument?. 185 

By whom is the instrument executed?. 185 

What is an executor?. 185 

What is the maker of a will called?. 185 

What is an administrator?. 185 

What is an assignee?. 185 

What is a trustee?.’. 185 

What is a guardian?. 185 

What is a plot of land ?. 186 

What is a soldier’s discharge?. 186 

What is a charter of corporation?. 186 

What is a commission ?.■. 186 

What is a limited partnership ?. 186 

What is a letter of attorney?. 186 

What is a patent from the commonwealth?. 185 

What act, on the part of the makers of instruments in the 
dockets of the recorder’s office, is necessary before these 
instruments can be recorded there?. 186 

Acknowledgment — Probate. 

What is an acknowledgment?. 186 

What is a probate?. 187 

Before whom must the acknowledgment be taken, and the 

probate made? . 186 

Take and transcribe the acknowledgment of an individual, 

as read by the teacher. 187 

Take and transcribe the acknowledgment of a corporation, 

as read by the teacher. 187 

Take and transcribe the probate, as read by the teacher. . . . 188 
Take and transcribe every instrument that may be recorded 
in the recorder’s office, of which examples are fur¬ 


nished.188-197 






























238 


QUESTIONS TO AID THE STUDENT. 


Corporations. 


Classes. 

Into how many classes are corporations of this state di¬ 


vided? . 198 

Name the purposes of those in the first class.. . 198 

Name the purposes of those in the second class. 198 


First Class, Under Act 29 April, 1874. 

Where is power to grant charter lodged?. 198 

By whom must the application be signed?. 198 

How many of the subscribers must be citizens of the state? 198 

What facts must be set forth in the application ?. 198 

By how many of the subscribers must the application be 

acknowledged? . 198 

Before whom must the acknowledgment be made?. 198 

What kind of notice of a proposed application is required? 198 

What facts must appear in this notice?. 198 

To whom must the application be presented?. .. .. 198 

With proof of what must the presentation of the applica¬ 
tion be accompanied ?. 198 

In disposing of the application, what is the judge required 

to do?. 199 

After the judge has granted the charter, what must be done 

to give full life to the corporation?. 199 

Take and transcribe the application for a charter under 

this act, as read by the teacher.199-200 

Take and transcribe the notice of application, as read by 

the teacher.199-200 

Take and transcribe the proof of publication of notice, as 

read by the teacher.206-207 

Take and transcribe the decree, as read by the teacher. .. . 201 

First Class, Under Act 6 April, 1893. 


Where is power to grant charter lodged ?. 201 

By whom must the application for charter be signed?. . . . 201 
By whom must the acknowledgment of the application be 

made, and before whom must it be made?. 201 

What facts must be set forth in the application?. 201. 






















QUESTIONS TO AID THE STUDENT. 


239 


What notice of the application is required?. 201 

To whom must the application be presented?. 202 

With proof of what must the application be accompanied ? 202 
In disposing of the application, what is the judge required 

to do?. 202 

After the charter has been granted, what must be done to 

complete the existence of the corporation?. 202 

When may the corporation begin business?. 202 

Take and transcribe the application for a charter under this 

act, as read by the teacher.202-205 

Take and transcribe the notice of the proposed application, 

as read by the teacher.202-205 

Take and transcribe one of the proofs of publication, as 

read by the teacher.202-205 

Take and transcribe the decree, as read by the teacher. . . . 206 

Second Class. 

Where is the power to grant charter lodged?. 207 

By how many persons must the application be signed?. . . 207 
How many of the subscribers must be citizens of the state ? 207 

In the application, what facts must be set forth?.207-208 

What affidavit must the application contain, and how many 

subscribers must subscribe and swear to the same?. .207-208 
By whom must the subscribers be sworn to the affi¬ 
davit? .207-208 

By whom and before whom must the acknowledgment to 

the application be made?.207-208 

What notice of application is required?.207-208 

What facts must appear in the notice?. 208 

To whom must the application be presented ?. 208 

With what proof must the application be accompanied?. .. 208 
In disposing of the application what is the duty of the 

governor ?. 208 

In what offices must the application, and all indorsements 

ments thereon, be recorded?. 208 

Take and transcribe the application, including the affidavit 
and acknowledgment of the same, as read by the 

teacher.208-210 

Take and transcribe the notice of application, as read by 
the teacher. 


211 





















240 


questions to aid the student. 


Take and transcribe the proof of publication of notice, as 

read by the teacher. 211 

Take and transcribe the indorsement of the governor on 

the application, directing that letters patent issue. 212 


Limited Partnership, Under Act 21 March, 1836. 

For what purposes may a limited partnership be created? 213 

By whom may it be formed?. 213 

How many classes of members are there in a limited part¬ 
nership, and what is each class called?. 213 

Of what must the contribution of a special partner to the 

capital of a limited partnership consist?. 213 

What is the extent of the liability of a special partner for 

the debts of a limited partnership?. 213 

What is the extent of the liability of a general partner for 

the debts of a limited partnership?. 213 

How is a limited partnership organized?. 213 

Give the facts required to be set forth in the certificate of 

association. 213 

By whom and before whom must the certificate be acknowl¬ 
edged? . 213 

Where must the certificate of association be recorded and 

filed? . 214 

What notice must be given to the public of the terms of the 

partnership ?. 214 

If this notice is not given what is the result, respecting the 

liability of the partners?. 214 

Take and transcribe the certificate of limited partnership, 
including its acknowledgment, as read by the 

teacher.214-215 

Take and transcribe the notice to the public of the terms of 

the partnership.215-216 

Limited Partnership, Under Act 2 June, 1874. 

How is this partnership formed?.215-216 

What facts must be set forth in the statement required in 

the formation of this partnership?.215-216 

Before whom must the statement be acknowledged, and by 

whom must the acknowledgment be made?.215-216 

What is the extent of the liability of the members for the 

debts of this partnership ?.215-216 





















QUESTIONS TO AID THE STUDENT. 


241 


What special word must be used in the name of the part¬ 
nership, and at what point in the name must it be 

be used?. 215-216 

Of what may contributions to the capital of the partner¬ 
ship consist? . 217 

How must the valuation of property contributed be ascer¬ 
tained ?. 217 

Concerning property contributions, what must appear in the 

statement? . 217 

Take and transcribe the statement required for the forma¬ 
tion of this partnership, including the acknowledgment 
of the same, as read by the teacher.217-219 
















NOV 22 190^ 


















- 






















,*r 















































\ 


























































